In its ruling of April 18, 2024, the Lower Saxony Higher Labor Court had to decide, among other things, whether an employee is entitled to continued remuneration from their employer in accordance with Section 3 para. 1 sentence 1 EFZG has. According to Section 3 para. 1 EFZG, an employee is entitled to continued payment of remuneration in the event of illness by the employer for the period of incapacity to work up to a period of six weeks if he is prevented from performing his work due to the incapacity to work through no fault of his own.

In the court proceedings, the employer disputed the employee’s inability to work.

Burden of proof, means and value of an AU certificate under discussion

According to the general principles, the employee bears the burden of presentation and proof for the eligibility requirements of Section 3 para. 1 EFZG (BAG, judgment of 11.12.2019, 5 AZR 505/18 – para. 16). The employee must therefore demonstrate and prove their inability to work, i.e. the case of illness.

An incapacity for work due to illness is usually proven by the submission of a medical certificate of incapacity for work (AU certificate) within the meaning of § 5 Para. 1 sentence 2 EFZG.

Normally, evidence is deemed to be provided by the submission of a properly issued sickness certificate. The LAG attributes a high evidential value to the sick leave certificate, which is not affected by a simple denial or a denial with ignorance.

The probative value of the AU certificate can be undermined

The practical significance of the judgment of the Lower Saxony Higher Labor Court lies in its statements on the possibility of undermining the probative value of a certificate of sick leave. In doing so, the LAG of Lower Saxony follows on from the case law of the BAG (judgment of 13.12.2023 – 5 AZR 137/23) and continues to develop it consistently.

The Higher Labor Court of Lower Saxony strengthens the evidentiary position of employers in the case of the submission of a sick leave certificate. The employer can „only“ (but still) shake the probative value of the sick leave certificate,

that he presents and, if disputed, proves factual circumstances that cast doubt on the employee’s illness, with the result that the medical certificate no longer has any probative value.

The probative value of a certificate of incapacity for work pursuant to Section 5 para. 1 sentence 2 EFZG may – according to the LAG of Lower Saxony – also be undermined in the circumstances of the individual case due to violations of certain requirements of the Incapacity for Work Directive (AURL) by the issuing doctor. In this respect, however, not all requirements of the AURL are significant in terms of evidence; in any case, purely formal requirements with significance under health insurance law are irrelevant. According to the legal opinion of the Higher Labor Court of Lower Saxony, the violation of the provisions of § 4 and § 5 AURL, which serve precisely to determine the medical determination of incapacity for work, will regularly lead to the evidentiary value of the certificate of incapacity for work being undermined.

Evidentiary consequence of the undermining of the evidential value of the AU certificate

As a result of the shattering of the probative value of the certificate of incapacity for work, the same situation arises again with regard to the burden of presentation and proof as existed before the certificate was submitted.

The employee bears the burden of presentation and proof for the facts that allow the conclusion of an existing illness. In any case, this requires a substantiated submission as to which health restrictions existed and which behavioral measures or medication were prescribed by a doctor. The employee must describe, at least in layman’s terms, in relation to the period of continued remuneration, which specific health impairments existed and what effects they had on their ability to work (BAG, judgment of 13.12.2023 – 5 AZR 137/23).

Shaking of the evidential value of the AU certificate of considerable practical relevance

The line of case law outlined above strengthens the rights of employers and correctly addresses the actual significance of the sick note. The possibility of undermining the probative value of the certificate of incapacity for work is a practically significant gateway for cases in which only a feigned incapacity for work is likely.