By judgement of 8 October 2021 (docket quantity: 5 AZR 149/21) opposite to the 2 earlier occasion selections, the Federal Labour Court docket (Bundesarbeitsgericht – BAG) dismissed a declare for continued fee of remuneration. The Court docket has dominated that the evidential worth of the certificates of incapacity for work will be affected particularly if an worker terminates his or her employment relationship, is then licensed as incapacitated for work on the day of termination, and the licensed incapacity for work exactly covers the period of the discover interval.
The claimant had been employed by the defendant as a business worker because the finish of 2018. The claimant herself terminated her employment relationship with the defendant on 8 February 2019. On the identical time, she submitted to the defendant a certificates of incapacity for work dated on the identical day, in accordance with which the claimant was on sick go away precisely till the expiry of the discover interval.
The defendant then refused to proceed to pay remuneration on the grounds that the evidential worth of the certificates of incapacity to work was disturbed as a result of precise correspondence with the remaining time period of the employment relationship. The claimant requested continued fee of remuneration from the defendant
The claimant had initially proved her alleged lack of ability to work throughout the interval at challenge by the use of a certificates of incapacity for work. This was the proof offered for by legislation. The employer might undermine its evidential worth if he introduced precise circumstances and, if crucial, proved that there have been grounds for critical doubts concerning the lack of ability to work. If the employer succeeds in doing so, the worker should substantiate and show that he was unable to work. The proof could possibly be offered particularly by listening to the physician treating the worker after he had been launched from his responsibility of confidentiality.
In accordance with these ideas, the defendant had weakened the evidential worth of the certificates of incapacity for work. The coincidence between the discover of 8 February to 22 February 2019 and the incapacity for work licensed on 8 February to 22 February 2019 gave rise to a critical doubt as to the licensed incapacity for work. The claimant had due to this fact not met her burden of proof on the existence of an incapacity to work in a sufficiently concrete method throughout the trial.
Accordingly, the claimant was not entitled to continued fee of remuneration as a result of lack of a confirmed case of sickness, which is why the court docket needed to dismiss the declare.
The choice doesn’t imply a elementary change. Somewhat, it stays the case that certificates of incapacity for work have a really excessive evidential worth for the precise existence of incapacity for work. If employers don’t reach weakening the evidential worth by way of circumstantial proof, or if staff can subsequently present full proof of their lack of ability to work, the statutory obligation to proceed to pay remuneration stays.
As the choice exhibits, it could nonetheless repay for employers in particular person circumstances to doubt the accuracy of certificates of incapacity for work.