The ruling of the Federal Labor Court (BAG) from December 13, 2023 (Ref. 5 AZR 137/23) provides clarity in dealing with certificates of incapacity for work (AUB). It sheds light on a key issue in employment law: How much weight can be given to an AUB and under what circumstances can employers* undermine its probative value? For entrepreneurs and companies who are confronted with issues such as continued remuneration and dismissals, this judgment offers valuable guidance and strengthens legal certainty.

Certificates of incapacity for work are an essential part of the employment relationship, as they form the basis for continued payment of wages in the event of illness. However, the BAG has clarified that their evidential value is not absolute. In certain cases, employers can raise justified doubts if there are comprehensible circumstances that call the credibility of the certificate into question. This article sets out in detail the findings that can be derived from the ruling, how employers can benefit from it and the legal and practical consequences.

The legal background: Continued payment of remuneration and evidential value

The legal basis for the entitlement to continued remuneration in the event of illness can be found in Section 3 (1) of the Continued Remuneration Act (EFZG). This states that employers are obliged to continue to pay wages for a period of up to six weeks if an employee is unable to work due to illness and can prove this. A certificate of incapacity for work is regarded as a key piece of evidence. It is considered particularly credible by case law as it is issued by a doctor who assesses the employee’s state of health.

However, despite their high evidential value, certificates of incapacity for work are not absolute proof of actual incapacity for work. The BAG has repeatedly emphasized that employers have the opportunity to undermine the evidential value if specific circumstances cast doubt on the credibility of the certificate. This is supported by the legal structure, as the evidential value of an AUB is high, but cannot be equated with an irrefutable presumption.

The judgment in detail: When is the probative value shaken?

In this case, the employee had submitted a certificate of incapacity for work shortly after receiving notice of termination from the employer, which coincided exactly with the notice period. In addition, the employee was able to work again immediately after the end of the employment relationship and took up new employment. The employer then refused to continue to pay the salary and cited these circumstances as evidence that the certificate was not credible.

The BAG ruled that the employer may have justified doubts about the probative value of the sick note in such cases. The coincidence in time between the certified incapacity for work and the notice period is a strong indication that can call credibility into question. The fact that the employee was able to return to work immediately after the notice period expired also increased the employer’s doubts. However, the court emphasized that the employer does not have to provide evidence to the contrary of the alleged inability to work. It is sufficient for the employer to present concrete and comprehensible doubts based on objective circumstances.

The BAG also clarified that the high evidential value of the AUB does not automatically disappear completely as a result. Rather, the burden of proof is shifted back to the employee. The employee must then explain in detail why the incapacity to work actually existed. This includes, for example, a substantial description of the symptoms, medical diagnoses or the disclosure of medical treatment steps if the doctor is released from the duty of confidentiality.

Practical consequences for entrepreneurs

The ruling has considerable practical relevance for companies that are confronted with doubts about an employee’s incapacity for work. It provides them with a powerful tool to prevent the misuse of certificates of incapacity for work. Nevertheless, employers must proceed cautiously and carefully in order to avoid legal conflicts.

Documentation is an important aspect. Employers should document all circumstances that cast doubt on the credibility of an AUB in detail and in a timely manner. This includes, for example, conspicuous patterns, such as frequent sick notes immediately after conflicts at the workplace or a conspicuous correspondence between the duration of the incapacity for work and a notice period.

Communication also plays an important role. Employers should make sure that they formulate their doubts about the inability to work clearly and comprehensibly, without accusing the employee too hastily. Objective and respectful communication can help to avoid escalation and resolve the conflict constructively.

Business owners should also seek legal advice to ensure that their approach complies with legal requirements. Working with a specialist lawyer can help to avoid potential mistakes and strengthen the company’s position.

The role of the burden of proof: a question of balancing

A central point of the ruling is the question of the burden of proof. In principle, the burden of proof for incapacity to work initially lies with the employee. The employee provides the necessary evidence by submitting a proper AUB. However, if the burden of proof is shaken, the burden of proof shifts back to the employee. In its ruling, the BAG emphasized that no excessive demands should be placed on the employer’s submission. It is sufficient if the employer presents objective circumstances that cast doubt on the credibility of the certificate.

For the employee, this means that if the value of the evidence is shaken, he or she must deal much more intensively with providing evidence. This may mean submitting medical findings or giving a detailed account of their medical history. The ruling thus strikes a balance between the rights of the employee and the interests of the employer in preventing abuse.

Conclusion: Good guidelines for employers

The BAG ruling sets an important legal standard for dealing with certificates of incapacity for work. It shows that although the evidential value of a certificate of incapacity for work is high, it is not unassailable. Employers have the right to raise justified doubts if there are objective circumstances that call the credibility of the certificate into question. At the same time, shifting the burden of proof to the employee ensures that there is no one-sided burden.

It is crucial for entrepreneurs and companies to know the legal requirements precisely and to proceed strategically in cases of doubt. The BAG ruling provides a solid basis for this and strengthens the rights of employers without undermining the basic protective rights of employees.

With these findings, companies can not only act with legal certainty, but also better protect their economic interests. The ruling promotes a fair balance between employer and employee rights and provides clear guidance for both sides.

* This refers to persons of all gender identities. Other spellings are only omitted for reasons of readability.