Certificates of incapacity for work and their evidential value
Employees who are unfit for work do not have to work but may have to provide a certificate of incapacity for work. Theses certificates are strong proof that an employee is truly unfit for work. Nevertheless, the evidential value of a certificate of incapacity for work is not beyond dispute, see also our article “Certificate of incapacity for work and incapacity for work guideline”.
The circumstances surrounding the certificate of incapacity for work can undermine its evidential value. In this case, employees are then required to demonstrate that they were truly unfit for work – pursuant to the secondary burden of proof and only provided that the employer has a justifiable reason to doubt the illness on the grounds of specific circumstances.
What happened?
A part-time secretary at a primary school was notified of a ban on leave for July 6, 2023 at the beginning of the school year. Nevertheless, the woman submitted a request for leave for that day. Naturally, without success.
On July 5, 2023, the woman suddenly fell ill with an alleged gastrointestinal infection and took sick leave until July 7, 2023 with a medical certificate. Nevertheless, she attended a trainer license course at the state gymnastics school on 6 July – as apparently planned.
Her employer suspected deceit. When interviewed about the suspected fraudulent incapacity to work, she only stated that the medication had worked, which is why she attended the course.
The employer was not convinced and terminated her employment contract without notice. The history of the case (ban on leave, rejected leave request, etc.) cast considerable doubt on whether the woman was ill. Therefore, the evidential value of the certificate of incapacity for work was in doubt.
The woman saw this differently, arguing that she was undergoing psychotherapy and, for this reason, it was sensible to leave the house even if she was unfit for work.
Courts in agreement
The protection against wrongful dismissal case was unsuccessful before the Osnabrück Labor Court and the appeal before the Lower Saxony Higher Labor Court also failed.
The decisive factor was the leave request despite the fact that she was aware of the ban on leave: The employee did not deny that she was aware of the ban on leave nor did she dispute that she had repeatedly inquired about leave for that day. This behavior combined with the timely coincidence of her “spontaneous” illness cast doubt on the correctness of the certificate of incapacity to work. These doubts were only reinforced by her attending the course despite her alleged illness.
Moreover, the court also based its decision on the fact that the woman actually attended the trainer course on July 6, 2023. Although it is conceivable that the causes of her illness rendered her unable to work, they did not prevent the plaintiff from attending the course. The woman also failed to provide sufficient information about the cause of her incapacity to work. In view of the alleged gastrointestinal illness, it was not clear whether she wanted to uphold this statement. She also claimed that it was a psychosomatic illness.
Lastly, the court also based its ruling on the fact that the woman had registered for the course in advance and had not withdrawn despite her unsuccessful application for leave.
Fraudulent illness – Termination without notice
Furthermore, a fraudulent certificate of incapacity for work justifies extraordinary termination without notice – even without a warning. This conduct represents such a serious breach of duty that the employer cannot reasonably be expected to continue the employment relationship. On one hand because of the fraudulent nature (which affects the entitlement to continued payment of remuneration!) and also because this conduct in itself demonstrates that the employee obviously refuses to accept the employer’s instructions.
What can we do for you?
Do you have any questions about certificates of incapacity for work and their evidential value? Do not hesitate to contact us!
Summary of the key facts:
- A certificate of incapacity for work has high evidential value.
- If the employer has reasonable doubts about the certified incapacity for work, the employee bears the secondary burden of proof with regard to their incapacity for work.
- Employers are well advised to investigate reasonable doubts about incapacity for work.