Probative Value of a Sick Note
If an employee is deemed unfit for work, they are not required to work. A doctor’s certificate of incapacity for work (AU) serves as strong evidence in such cases. It demonstrates that the employee is indeed unable to work and not merely feigning illness.
Still, the AU is not irrefutable. If significant doubts arise – due to surrounding circumstances or factual indications – the probative value of the certificate can be challenged.
But does this give employers the right to commission a private investigator when they question the validity of a sick note? And does the General Data Protection Regulation (GDPR) set boundaries for such measures?
The Federal Labor Court (BAG) addressed this issue.
Employee Monitored by Private Investigator
A long-time employee filed a lawsuit against his employer after being randomly surveilled by a private investigation agency. The surveillance included photos taken in public and private settings – shopping, doing repair work at home, or carrying heavy items.
The employer initiated the surveillance after the employee reported sick following a heated conflict. Although a medical certificate was submitted, the employer suspected that the illness was feigned and thus ordered the observation.
Upon learning about the surveillance, the employee claimed €25,000 in damages under Article 82(1) GDPR, citing a violation of his data protection rights and privacy.
No Using a Cannon to Shoot a Sparrow
The employee’s lawsuit was unsuccessful in the labor court.
However, the regional labor court awarded €1,500 in damages – a decision confirmed by the Federal Labor Court (BAG).
The court found that the employer unlawfully processed sensitive health data (Article 4(15) GDPR). Such processing is only permitted in exceptional cases under strict conditions.
In particular, the exception under Article 9(2)(b) GDPR and Section 26(3) of the German Federal Data Protection Act (BDSG) did not apply here. These provisions allow processing if necessary for the employer to exercise rights arising from labor law.
Although surveillance might generally be permissible to challenge the validity of a sick note, in this case, it was not the least intrusive measure. The employer failed to prove that such surveillance was necessary to weaken the AU’s probative value.
Loss of Control and Privacy Concerns
In cases like this, claims for damages are based on Article 82 GDPR.
Even a brief loss of control over one’s (health) data can constitute immaterial damage, thus justifying compensation.
Lastly, the BAG found the €1,500 award to be adequate under EU principles of equivalence and effectiveness. A claim for damages should not serve as a deterrent but rather compensate for actual harm.
Related blog articles on sick notes and evidentiary value
- The Probative Value of a Sick Note (AU)
- Sick Leave Certificates and the Guideline on Incapacity for Work
What We Can Do for You?
Do you have any questions? Do not hesitate to contact us!
Summary of the keyfacts
- A medical certificate of incapacity for work generally has high probative value.
- If there are serious doubts about its validity, employee surveillance may be legally permissible.
- However, surveillance must be the least intrusive means and is only lawful if doubts are well-founded.
