Germany: Evidential Value Of A Certificate Of Incapacity For Work

The parties are disputing over an entitlement to continued remuneration in case of incapacity for work for the remaining notice period of a terminated employment. According to Sec. 3 para. 1 s. 1 of the German Continued Remuneration Act (EFZG), the entitlement requires the employee to submit a doctor's note certifying the incapacity for work.

Such certificate holds a very high evidential value pursuant to German case law. This means that unless the employer provides facts that are able to impair this, the employee fulfilled his burden of proof that he was incapacitated for work simply by submitting the certificate.

In the present case the employee notified the employer of his incapacity for work. On the same day the employer issued a notice of termination which the employee received on the following day. Until the last day of the employment, the employee provided certificates of incapacity for work. The day after his previous employment ended, he started to work for a new employer.

The former employer argued that the certificates of incapacity for work had no evidential value as they were linked to the termination of the employment, thus not proving the incapacity for work as required for the entitlement to continued remuneration.

However, the court found that the evidential value of the certificates of incapacity for work had not been impaired. The sole fact that they corresponded with the remaining time of the employment and that the employee started a new employment right after were not considered sufficient to impair the evidential value. The court especially considered that the period of incapacity for work began one day before the employee received the notice of termination. Hence, the employer would have had to provide further facts that impair the evidential value of the doctor's notes, which he was unable to do.

As a result, the employee was entitled to continued remuneration for the duration of the incapacity.

Practical Point

• If there is a timely coincidence between the alleged incapacity for work and a measure of the employer e.g. a termination, warning or instruction to do a certain work, this can impair the evidential value of a certificate of incapacity for work. In that case, the burden of proof shifts back to the employee, who must present further proof that he was actually unable to work due to sickness. However, as this recent court ruling shows, the specific circumstances are decisive as to whether the evidential value can be considered impaired or not.