Continued payment of remuneration during the notice period
Employees are required to work until the end of their notice period unless they have been released from their duties.
If an employee becomes ill during this final phase of the employment relationship, they remain entitled to continued remuneration pursuant to Section 3 (1) of the Continued Remuneration Act (EFZG).
However, this requires that the employee can prove that they were “unfit for work”. There is entitlement to continued payment of remuneration in the event of illness without proof thereof.
Proof is provided by means of the certificate of incapacity for work. This is because the evidential value of this medical certificate is very high when disputes regarding the entitlement to continued remuneration occur.
However, the evidential value of a certificate of incapacity to work may also be disputed. The circumstances appear suspicious if the period of sick leave coincides exactly with the duration of the notice period. In such situations, some employers will believe that they have seen through the ruse. Rightly so?
Sick until the last day
Yes, as the Schleswig-Holstein State Labor Court (LAG) recently ruled (decision dated May 2, 2023, Ref: 2 Sa 203/22).
An employee had submitted her letter of resignation effective as of June 15, 2022 in a letter dated May 4, 2022. One day after her giving her notice of termination, she became unable to work and remained on sick leave for the entire notice period. During this time, she submitted a total of five consecutive certificates of incapacity for work. Her incapacity for work was justified by overwork and mental impairment with physical illness as a consequence.
However, the employer did not believe that the woman was truly unfit for work. The medical certificates spanning the precise time from the beginning to the end of the notice period seemed suspicious to her employer. The company doubted the evidential value of the certificates of incapacity to work and refused to continue to pay remuneration. The employee then sued for payment.
Evidential value of the medical certificate shaken
As a rule, certificates of incapacity to work possess very high evidential value. Otherwise, the system of sick leave and continued remuneration would become almost impossible if employers and employees were generally unable to rely on medical certificates issued by doctors.
However, the evidential value of a certificate of incapacity to work is not indisputable. If an employer can present facts that cast doubt on the employee’s illness, this may undermine the evidential value of the medical certificate.
The court reached a similar conclusion in this particular case. Consequently, it saw no entitlement to continued payment of remuneration without proof of illness. The payment claim failed.
In the process, the court drew on a decision by the Federal Labor Court (BAG) from 2021. The Federal Labor Court had clarified that the evidential value of a certificate of incapacity to work could be undermined if it was issued for the exact duration of the notice period. The fact that multiple medical certificates had been issued in this particular case, rather than not just one, made no difference to the Schleswig-Holstein State Labor Court.
It is interesting to note the court came to this conclusion because the woman had “betrayed” herself with her own letter of resignation. The letter of resignation indicated that the woman herself did not expect to return to work after giving notice (upon reading between the lines, see verdict).
As such, employers do not necessarily have to accept the evidential value of a medical certificate as absolute. If there are verifiable indications and circumstances that the employee was not ill as certified, the evidential value of a certificate of incapacity for work may even be entirely eliminated.
What can we do for you?
Do you have questions regarding certificates of incapacity for work? Do you need support in a specific case? Do not hesitate to contact us!
Summary of the key facts:
- Certificates of incapacity for work have very high evidential value in proceedings concerning claims for continued payment of remuneration.
- If an employee remains on sick leave for the exact duration of the notice period, this may undermine the evidential value of the medical certificate.
- The number of medical certificates issued for the period of sick leave which perfectly coincides with the notice period makes no legal difference.
