Tenor

1. on the defendant’s appeal, the judgment of the Lower Saxony Regional Labour Court of 8 March 2023 – 8 Sa 859/22 – is set aside on the point of costs and insofar as the Regional Labour Court dismissed the defendant’s appeal against the judgment of the Hildesheim Labour Court of 26 October 2022 – 2 Ca 190/22 – with regard to payment for the period from 7 to 31 May 2022 in the gross amount of EUR 1,294.72 plus interest.

2. for the rest, the defendant’s appeal against the aforementioned judgment of the Higher Labor Court of Lower Saxony is dismissed with regard to the payment for the period from May 1 to May 6, 2022 in the gross amount of EUR 380.80 with the proviso that the interest awarded in the aforementioned judgment of the Hildesheim Labor Court for this period is only payable from June 23, 2022.

3. the case is referred back to the Regional Labor Court for a new hearing and decision – including on the costs of the appeal – to the extent that it has been set aside.

Facts of the case

1

The parties are in dispute about continued payment of remuneration in the event of illness.

2

Since March 2021, the plaintiff had been employed as a helper by the defendant, which operates a temporary employment agency, with an hourly wage of 10.88 euros gross. The weekly working time was 35 hours. According to the employment contract, the remuneration was to be paid no later than the 15th banking day of the following month. The defendant has not employed the plaintiff since April 21, 2022.

3

On May 2, 2022, the plaintiff submitted to the defendant a certificate of incapacity for work dated the same day for the period from May 2 to May 6, 2022. In a letter dated May 2, 2022, which the plaintiff received on May 3, 2022, the defendant terminated the employment relationship with effect from May 31, 2022. In a follow-up certificate dated May 6, 2022, the plaintiff’s incapacity to work was certified until May 20, 2022, and in a further follow-up certificate dated May 20, 2022, until May 31, 2022. According to the certificates of incapacity for work submitted by the plaintiff in the trial, the incapacity for work was based on the diagnosis according to ICD-10 code J06.9. The certificate of incapacity for work dated May 20, 2022 also showed the diagnosis according to ICD-10 code R45.7. From June 1, 2022, the claimant was able to work again and took up new employment.

4

In a letter dated May 23, 2022, the defendant informed the plaintiff that due to the coincidence between the termination and the incapacity for work certified from May 2 to May 31, 2022, there were serious doubts about the incapacity for work, which is why it was refusing to continue to pay remuneration for the period in question. By fax dated May 28, 2022, the plaintiff requested the defendant to pay the remuneration for the month of May 2022.

5

In his lawsuit, the plaintiff demanded continued payment of sick pay from the defendant for the period from May 2 to May 31, 2022. He argued that the evidential value of the certificates of incapacity for work had not been shaken. He had initially reported sick and only then did the defendant give notice of termination. This contradicts a coincidence in time between the dismissal and the sick note, especially as it was an employer dismissal. He had been consistently diagnosed with an upper respiratory tract infection, and from May 20, 2022, “emotional shock or stress” had been added as a further diagnosis.6

The plaintiff has applied,

order the defendant to pay the plaintiff EUR 1,675.52 gross plus interest in the amount of five percentage points above the respective base interest rate since June 15, 2022

7

The defendant filed a motion to dismiss and argued that the probative value of the certificates of incapacity for work was shaken because the period of certified incapacity for work corresponded exactly to the notice period and the plaintiff had become fit for work again immediately after the termination of the employment relationship and had taken up new employment.

8

The labor court upheld the claim. The Regional Labor Court dismissed the defendant’s appeal. With the appeal allowed by the Regional Labor Court, the defendant continues to pursue its claim for dismissal.

Reasons for the decision

9

The defendant’s admissible appeal is partially justified – in relation to the period from May 1 to May 6 with regard to the start of interest and in relation to the period from May 7 to May 31, 2022 as a whole. The lower courts rightly awarded the plaintiff continued remuneration due to incapacity for work for the period from May 2 to May 6, 2022. However, they did not recognize that the defendant had shaken the probative value of the certificates of incapacity for work dated 6 May 2022 and 20 May 2022. On the basis of the findings made, the Senate cannot decide on the merits of the action for the period from May 7 to May 31, 2022. This leads to the partial annulment of the appeal judgment and, to the extent of the annulment, to the referral of the case back to the Regional Labor Court for a new hearing and decision (Section 562 (1), Section 563 (1) ZPO).

10

I. The appeal is only justified for the period from May 1 to May 6, 2022 with regard to the start of interest. The Regional Labor Court rightly dismissed the defendant’s appeal against the judgment of the Labor Court in this respect. The plaintiff is entitled to continued remuneration in the event of illness for this period under Section 3 (1) EFZG in the gross amount of EUR 380.80.

11

1. 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 in accordance with Section 3 (1) sentence 1 EFZG if he is prevented from performing his work due to incapacity to work as a result of illness without being at fault. According to general principles, the employee bears the burden of presentation and proof for the eligibility requirements of Section 3 (1) sentence 1 EFZG (BAG June 28, 2023 – 5 AZR 335/22 – para. 11; December 11, 2019 – 5 AZR 505/18 – para. 16, BAGE 169, 117).

12

a) Proof of incapacity for work due to illness is generally provided by submitting a medical certificate of incapacity for work within the meaning of Section 5 para. § 5 para. 1 sentence 2 EFZG. The duly issued certificate of incapacity for work is the most important form of evidence expressly provided for by law for the existence of incapacity for work due to illness. According to § 7 Para. 1 No. 1 EFZG, the submission of a medical certificate within the meaning of § 5 Para. 1 Sentence 2 EFZG is sufficient. § Section 5 (1) sentence 2 EFZG is sufficient to deprive the employer of the right to refuse performance. This legislative value decision also has an impact on the assessment of evidence. The properly issued certificate of incapacity for work therefore has a high evidential value due to the normative requirements in the Continued Remuneration Act. The explanatory memorandum to the electronic notification pursuant to Section 109 (1a) sentence 1 SGB IV described the paper certificate provided for in Section 5 (1a) sentence 2 EFZG “as a statutory means of evidence with the high evidential value granted to it by case law” (BT-Drs. 19/13959 p. 37) and thus adopted this assessment (aA Ricken RdA 2022, 235, 239 f.). The trial judge can normally consider evidence of incapacity for work due to illness to have been provided if the employee submits a certificate of incapacity for work in the legal dispute. Due to the normatively prescribed high evidentiary value of the certificate of incapacity for work, a “mere denial” of incapacity for work with ignorance by the employer is not sufficient if the employee has proven his incapacity for work with a properly issued certificate of incapacity for work. Rather, the employer can only undermine the probative value of the certificate of incapacity for work by presenting and, in the event of a dispute, proving factual circumstances that cast doubt on the employee’s illness, with the result that the medical certificate no longer has any probative value (BAG June 28, 2023 – 5 AZR 335/22 – para. 12; September 8, 2021 – 5 AZR 149/21 – para. 12 with further references, BAGE 175, 358).

13

b) A certificate of incapacity for work does not establish a legal presumption of actual incapacity for work within the meaning of Sec. § Section 292 ZPO with the consequence that only evidence to the contrary would be admissible (BAG June 28, 2023 – 5 AZR 335/22 – para. 12; September 8, 2021 – 5 AZR 149/21 – para. 13 mwN, BAGE 175, 358). The employer is not limited to the standard examples of serious doubts about incapacity for work listed in Section 275 (1a) SGB V (BAG September 8, 2021 – 5 AZR 149/21 – ibid.; Küfner-Schmitt note AP EntgeltFG Section 5 No. 11). Facts that shatter the probative value can also arise from the employee’s own factual submission (see, for example, BAG October 26, 2016 – 5 AZR 167/16 – para. 18, BAGE 157, 102) or from the certificate of incapacity for work itself (BAG 8. September 8, 2021 – 5 AZR 149/21 – loc. cit.; on undermining the probative value of a certificate of incapacity for work due to violations of certain requirements of the incapacity for work directive by the issuing physician BAG June 28, 2023 – 5 AZR 335/22 – para. 13 et seq.).

14

c) If the employer succeeds in disproving the probative value of the medical certificate of incapacity for work, the same situation applies with regard to the burden of presentation and proof as existed before the certificate was submitted. It is then up to the employee to present specific facts and, in the event of a dispute, to prove them which allow the conclusion that an illness exists. This requires a substantiated presentation, e.g. which illnesses were present, which health restrictions existed and which behavioral measures or medication were prescribed by a doctor. The employee must therefore describe, at least in layman’s terms, in relation to the entire period of continued remuneration, which specific health impairments existed and what effects they had on their ability to work (BAG September 8, 2021 – 5 AZR 149/21 – para. 15, BAGE 175, 358).

15

2 Based on this, the assumption of the lower courts that the plaintiff was unable to perform his work in the period from May 2 to May 6, 2022 due to illness cannot be objected to on appeal.

16

a) In principle, the assessment of the evidence is reserved to the trial judge in accordance with Section 286 ZPO. On appeal, it is only necessary to examine whether the assessment of the evidence is free of contradictions and without violating the laws of reasoning and general principles of experience, whether it is legally possible and whether the court of appeal has taken into account all circumstances essential for the assessment (see BAG September 8, 2021 – 5 AZR 149/21 – para. 18, BAGE 175, 358).

17

b) The decision of the Regional Labor Court for the period from May 2 to May 6, 2022 withstands this review. The Court of Appeal assumed without error of law that the defendant had not shaken the probative value of the certificate of incapacity for work dated May 2, 2022.

18

aa) The Regional Labor Court initially correctly assumed that the question of whether the probative value of the certificate of incapacity for work is shaken is not determined by whether the employee terminated the employment contract himself (see BAG September 8, 2021 – 5 AZR 149/21 – para. 19, BAGE 175, 358) or whether the employer terminated the employment contract. The probative value of the certificate of incapacity for work can also be undermined in the event of termination by the employer if the employee falls ill immediately after receiving the notice of termination and, according to the overall circumstances of the individual case to be assessed, there are indications that cast doubt on the existence of the incapacity for work. This is indicated in particular by a temporal coincidence between the notice period and the duration of the certified incapacity to work. In this respect, nothing else applies than in the case of an employee’s own termination (see BAG September 8, 2021 – 5 AZR 149/21 – para. 19, loc. cit.; Barrein NZA-RR 2023, 287, 288; Bissels/Singraven jurisPR-ArbR 24/2023 note 6 under C; NK-ArbR/Sievers 2nd ed. EFZG § 5 para. 87; probably also Fuhlrott/Mai NZA 2022, 97, 101). The serious doubts about the certified incapacity to work are based on the fact that the employee becomes unfit for work at a time when it is clear that the employment relationship is to end and remains so until the end of the notice period. The fact that a dismissal declared by the employer can still be challenged with an action for unfair dismissal does not prevent this. When determining the requirements for the parties’ mutual burden of proof in more detail, it must be taken into account that the employer generally has no knowledge of the causes of the illness and is only in a limited position to present circumstantial facts to substantiate the evidential value of the certificate of incapacity for work. Unlike in the case of a legal presumption, the employer does not have to present facts that can be proven to the contrary (BAG September 8, 2021 – 5 AZR 149/21 – para. 14, loc. cit.; the criticism by Krüger BB 2022, 2676, 2678, which does not take into account that, according to the Senate case law, it is still possible for the employee in such a situation to prove that he was actually unfit for work, is therefore incorrect; Fuhlrott/Mai NZA 2022, 97, 101; MüKoBGB/Müller-Glöge 9th ed. EFZG § 3 para. 79; NK-ArbR/Sievers 2nd ed. EFZG § 5 para. 89; Weidt BB 2022, 1396, 1397) .

19

bb) The assumption of the Court of Appeal that the temporal coincidence of the start of the incapacity for work with the defendant’s notice of termination is not given in the present case with regard to the certificate of incapacity for work dated May 2, 2022, cannot be objected to on appeal. The plaintiff only received the notice of termination one day after the certificate of incapacity for work was issued. There are no indications that the plaintiff had to expect the employment relationship to end shortly at the time the certificate was issued. In such cases, when examining serious doubts about the certified incapacity to work, it may be relevant that the employee was already aware of the employer’s intention to terminate the employment relationship before receiving the notice of termination, for example because the employee was consulted by the works council in accordance with Section 102 (2) sentence 4 BetrVG. The same applies if the employer indicates that it does not wish to extend a fixed-term employment relationship. However, there were no such factual circumstances in the case in dispute. According to the findings of the Regional Labor Court, at the time the certificate of incapacity for work was issued on May 2, 2022, the plaintiff had no knowledge that the defendant intended to terminate the employment relationship. The fact that he had not been employed by the defendant since April 21, 2022 is not sufficient in itself.

20

c) Insofar as the defendant complains of a violation of the procedure due to an incorrect assessment of evidence, there is already no admissible procedural complaint. The Senate has examined the complaint and, pursuant to Section 564 sentence 1 ZPO, refrains from giving reasons.

21

3. for the period from May 1 to May 6, 2022, based on five working days of seven hours and gross hourly remuneration of EUR 10.88, the plaintiff is entitled to continued remuneration in the event of illness in the gross amount of EUR 380.80.

22

4. for this period, the defendant owes default interest pursuant to Section 288 (1), Section 286 (2) no. 1 BGB, which the plaintiff is entitled to pursuant to Section 187 (1) BGB from the day after the due date (see BAG September 8, 2021 – 5 AZR 205/21 – para. 20 with further details). Contrary to the Labor Court’s assumption, the payment of remuneration does not have to be made on the 15th calendar day of the following month, but rather on the 15th banking day of the following month at the latest in accordance with Section 4 para. 2 subpara. 3 of the employee contract. As the parties to the employment contract have not defined the term “bank working day” in more detail, a general understanding must be assumed (see also Section 2 (1) sentence 1 no. 2 MiLoG; Section 23 (1) sentence 2 SGB IV), according to which bank working days are days on which credit institutions in the Federal Republic of Germany are regularly open to the public. Saturdays and Sundays as well as national public holidays are not bank working days. The claim for remuneration for the period from May 1 to May 6, 2022 therefore fell due on June 22, 2022, taking into account the nationwide public holiday Whit Monday (June 6, 2022). The plaintiff can therefore only claim interest from June 23, 2022.

23

II. The appeal is justified with regard to the defendant’s conviction for continued payment of remuneration for the period from May 7 to May 31, 2022. In this respect, the Court of Appeal erred in law in assuming that the evidential value of the certificates of incapacity for work dated May 6, 2022 and May 20, 2022 submitted by the plaintiff had not been shaken by the defendant.

24

1 However, the Court of Appeal initially correctly assumed that, when assessing the probative value of certificates of incapacity for work in connection with terminations, it is not decisive whether one or more certificates are submitted for the duration of the notice period (likewise Barrein NZA-RR 2023, 287, 288; Fuhlrott/Mai NZA 2022, 97, 101). The serious doubts about the certified incapacity to work are based – as already explained above (para. 18) – on the fact that the employee becomes unfit for work at a time when it is clear that the employment relationship is to end and remains so until the end of the notice period. The fact that several certificates of incapacity for work are required to cover this period in the event of a longer notice period is primarily due to Section 5 (4) sentence 1 of the Incapacity for Work Directive in the version applicable in May 2022 (Incapacity for Work Directive as amended), according to which the expected duration of incapacity for work should in principle not be certified for a period more than two weeks in advance.

25

2 However, the Regional Labor Court wrongly failed to consider all the circumstances of the individual case at hand and did not assess the circumstances taken into account without contradictions.

26

a) The Court of Appeal did not take sufficient account of the fact that there was a temporal coincidence between the precise extension of the incapacity for work established in the follow-up certificates and the notice period (see also Bürger/Keyhan DB 2023, 1861, 1863). The incapacity for work initially certified for the period from May 2 to May 6, 2022 was initially extended by the doctor on May 6, 2022 after receipt of the notice of termination of May 2, 2022, initially by exhausting the two-week period pursuant to Section 5 (4) sentence 1 of the Incapacity for Work Directive (Arbeitsunfähigkeits-Richtlinie aF) and on May 20, 2022 until the termination of the employment relationship on May 31, 2022. When assessing these facts, the Regional Labor Court did not take into account that the determination of incapacity for work was made by the certificates of May 2, 2022 and May 6, 2022 until a Friday in each case, whereas the certificate of May 20, 2022 attested incapacity for work until Tuesday, May 31, 2022 and thus precisely until the termination of the employment relationship and the plaintiff took up new employment on June 1, 2022. Furthermore, the central reasoning of the Regional Labor Court that the plaintiff could not have been motivated to visit a doctor to obtain a certificate of incapacity for work only upon receipt of the employer’s notice of termination is not tenable for the period of incapacity for work from May 7 to May 31, 2022, because the plaintiff had already received the notice of termination on May 6 and 20, 2022. He received it on May 3, 2022.

27

However, the combination of such unusual circumstances, which may be harmless when viewed individually, raises serious doubts about the probative value of the certificates of incapacity for work issued on May 6, 2022 and May 20, 2022 when viewed as a whole. When assessing the circumstances of the individual case, it must always be borne in mind that the employer’s submission to substantiate the evidential value of the certificate of incapacity for work must not be subject to excessive requirements because the employer only has limited possibilities of knowledge. The employer does not have to present facts that can prove the contrary (see para. 18).

28

b) The serious doubts about the probative value of the certificates of incapacity for work issued on May 6, 2022 and May 20, 2022 arising from the circumstances described above The assumption of the Regional Labor Court that the probative value of the certificates of incapacity for work is supported by the fact that the plaintiff “was continuously unable to work until the end of the employment relationship due to the initial diagnosis and that, moreover, according to the ICD-10 code – voluntarily disclosed by the plaintiff – an upper respiratory tract infection is an illness that can generally be easily and unequivocally diagnosed by doctors” does not contradict the serious doubts about the probative value of the certificates of incapacity for work issued on May 6, 2022 and May 2022. This assumption is based on a lack of clarification of the facts and an incomplete assessment of the established facts.29

The Court of Appeal did not establish how the doctor diagnosed the plaintiff’s illness. It did not take into account that in the period in dispute, according to § 4 para. 5 sentence 2 of the old version of the incapacity for work guideline, the determination of incapacity for work was not only possible on the basis of a direct personal examination by the doctor or an indirect personal examination by means of a video consultation, but also, under the conditions specified in § 8 para. 1 sentence 1 of the Incapacity for Work Directive (old version), it was also possible after a telephone anamnesis (although, according to previous case law of the Federal Social Court, such a determination is not suitable to justify an entitlement to sickness benefit, see BSG December 16, 2014 – B 1 KR 25/14 R – para. 13; also MüKoBGB/Müller-Glöge 9th ed. EFZG § 3 para. 79; NK-ArbR/Sievers 2nd ed. EFZG § 5 para. 96). Against this background, the Regional Labor Court did not explain how it was able to arrive at the assumption that the plaintiff’s illness was easily and unequivocally ascertainable, nor is this apparent from the parties’ submissions. Depending on the type of examination, the old version of the incapacity for work guideline in implementation of § 92 para. 4a SGB V in the version applicable during the period in dispute contains different requirements in § 4 para. 5 sentence 4 and sentence 5 and § 5 para. 4 sentence 1 and sentence 2 different specifications for the possible duration of the incapacity for work to be certified (see MüKoBGB/Müller-Glöge loc. cit.; BeckOK ArbR/Ricken as of December 1, 2023 EFZG § 5 para. 27.1 et seq.; Schaub ArbR-HdB/Linck 20th ed. § 98 para. 109a; NK-ArbR/Sievers 2nd ed. EFZG § 5 para. 92 et seq.).

30

3. the errors of law pointed out lead to the annulment of the appeal judgment (Section 562 (1) ZPO) insofar as the Regional Labor Court ordered the defendant to continue to pay remuneration for the period from May 7 to May 31, 2022. The decision is also not correct in this respect for other reasons (see Section 561 ZPO). For this period, the plaintiff bears the full burden of presentation and proof for the existence of illness-related incapacity to work as a prerequisite for the entitlement to continued remuneration pursuant to Section 3 (1), Section 4 (1) EFZG. Since the Regional Labor Court – consistently from its point of view – did not make any findings in this regard, the matter must be referred back to the Regional Labor Court for a new hearing and decision, Section 563 (1) ZPO. In the further appeal proceedings, it will have to consider the following, among other things:

31

a) The plaintiff has submitted that the incapacity to work due to illness was also based on the diagnosis according to ICD-10 code J06.9 (Acute upper respiratory tract infection, unspecified) in the period from May 7 to May 31, 2022 and also on the diagnosis according to ICD-10 code R45.7 (Emotional shock or stress, unspecified) in the period from May 20 to May 31, 2022 and released the attending physician from his duty of confidentiality. The Regional Labor Court will have to give the parties the opportunity to make further submissions on the inability to work during this period, taking into account the grounds for the appeal judgment. If necessary, it will have to take evidence and consider hearing the plaintiff personally regarding his alleged inability to work (Section 141 ZPO).

32

b) Contrary to the opinion of the defendant, the case is not ready for decision due to the rejection of the plaintiff’s belated submissions on the causes of the certified incapacity for work and on the release of the doctor from the duty of confidentiality. If the court of appeal – as here – has left open the decision on the rejection of a means of attack or defense because it did not consider the submission to be relevant, the court of appeal may not make up for this decision if it considers the submission to be relevant (see BGH May 31, 2017 – VIII ZR 69/16 – para. 15; May 22, 2012 – II ZR 233/10 – para. 25).

33

c) Should the Regional Labor Court come to the conclusion that the plaintiff is also entitled to continued remuneration in the event of illness for the period from May 7 to May 31, 2022, it will have to take into account in its decision on interest that the claim for this period would also only have become due on the 15th banking day of the following month, June 22, 2022 (see para. 22).