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  • Huw Wynn Jones

The Probative Value of a Certificate for Work for the Duration of the Notice Period

Judgment of the Federal Labour Court of 08.09.2021 (5 AZR 149/21)


If a certificate of incapacity for work issued on the day of the employee's own notice of termination precisely covers the remaining duration of the employment relationship after the notice of termination, there may be serious doubts about the existence of an illness. This was decided by the 5th Senate of the Federal Labour Court on 8 September 2021.


The plaintiff was employed as a commercial employee. In February 2019, she terminated her employment relationship and at the same time submitted a medically certified certificate of incapacity to work for the entire duration of the notice period. Her employer then did not pay the plaintiff any salary for the duration of her incapacity for work.


In her action, the plaintiff demanded subsequent payment of the salary. The Federal Labour Court dismissed the action - contrary to the previous instances. The court held that it was true that the certificate of incapacity for work submitted by the plaintiff was the most important evidence for the existence of incapacity for work due to illness expressly provided for by law. However, it did not establish a legal presumption of an actual incapacity to work with the consequence that only proof to the contrary would be admissible.


In the case in dispute, there were serious doubts as to the existence of the plaintiff's illness because the certificate of incapacity for work issued on the day of the plaintiff's own termination covered exactly the remaining duration of the employment relationship after the termination. According to general principles, it was therefore again up to the plaintiff to present and prove her incapacity for work by means of substantial submissions. The plaintiff had not complied with this.


In practice, the possibilities for employers to shake the evidentiary value of a certificate of incapacity for work are very limited. The Federal Labour Court's ruling is therefore very gratifying from the employer's point of view.



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