Employee must prove illness
If an employee submits a sick note for the remaining period after termination, this can shake the probative value of the yellow slip. Employees must then explain and prove their inability to work.
Workers who present a sick note immediately after a dismissal and are thus absent from work until the expiry of the notice period cannot automatically expect continued payment of their salary. If an employee resigns and is on sick leave on the day of the resignation, this can undermine the probative value of the certificate of incapacity for work (AU). This is particularly the case if the period of time covers exactly the duration of the notice period, the Federal Labour Court (Bundesarbeitsgericht, BAG) ruled on Wednesday (Beschl. v. 08.09.2021, 5 AZR 149/21).
An employee of a temporary employment agency had resigned at the beginning of February 2019 at the end of the month and submitted an AU on the same day. According to the employer, on the day of issuance, she had announced to a colleague in her former employment company by telephone that she would no longer be coming to work. There was no mention of incapacity for work in the conversation.
The employer refused to continue to pay her wages. The woman, on the other hand, claimed that she had been on sick leave and was facing burnout. She demanded continued payment of wages. The Lower Saxony Regional Labour Court (Landesarbeitsgericht Niedersachsen, LAG) upheld the woman's claim and confirmed her entitlement to continued payment of wages (judgment of 13 October 2020, ref. 10 Sa 619/19).
Evidential value of the certificate of sick leave was shaken
However, the employer was successful in its appeal before the BAG. In the opinion of the Senate, the probative value of the AU was shaken because it covered exactly the remaining term of the employment relationship. Due to this fact, there had been serious doubts about the inability to work.
The plaintiff would therefore have had to explain and prove that she was actually unable to work. This proof could be provided in particular by questioning the doctor who had treated her after she had been released from the duty of confidentiality. The plaintiff had not complied with this despite the senate's advice.
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