Sick right note after termination: What now?

Liz is Head of Legal at twinwin.
As an expert in employment law, Liz enjoys sharing valuable legal knowledge with HR professionals, enabling them to avoid costly legal mistakes. Her mission at twinwin is to make employment law easy for HR.

“Well, I'm quitting and I'm also sick for now”

Almost every employer is familiar with this classic: an employee quitts/is dismissed and submits a sick note at the same time, right up to the end of the employment relationship. In such cases, the question often arises as to what evidentiary value a certificate of incapacity for work (AU) has with regard to continued payment of wages. Under what circumstances can the employer doubt this or is the AU unshakable? Does it make a difference when the notice was filed?

What exactly is a certificate of incapacity for work?

An AU (physically or now also electronically since January 2023) is the generally legally provided means of proving incapacity to work and ensures employees continued payment of pay in the event of illness. In short, it proves that the employee is ill and continues to receive his salary.

After Section 3 Continued Payment Act (EFZG) Is an employee entitled to continued payment of remuneration for the period of incapacity for work if he is unable to work as a result of illness.

In principle, the employee is in accordance with Section 5 (1) EFZG obliged to immediately notify the employer of the incapacity to work and its expected duration.

With the introduction of the electronic certificate of incapacity for work (Eau), the legally insured employee is no longer required to submit an AU to the employer.

In place of the obligation to provide proof, there is a so-called Duty to establish Joined: The employee is obliged to have the existence of the incapacity for work and its expected duration determined by a doctor no later than the fourth day of illness. The doctor then transmits the AU to the health insurance company, which in turn can be viewed by the employer via the appropriate portal.

Shaking the AU's evidentiary value?

Courts generally attach high evidentiary value to medical sick leave.
But under what circumstances can the evidentiary value of an AU be shaken?

In practice, it is not necessarily uncommon for the employer to also receive a sick leave until the end of the employment relationship at the same time as the dismissal. In many ways, this situation is annoying for the employer and has disadvantages. He is obliged to continue to pay remuneration (for up to 6 weeks) and must also refrain from the work actually still owed.

In particular, the employer may have doubts about the employee's inability to work if the duration of the sick leave is exactly the same as the notice period.

What was it specifically about?
The Federal Labour Court (BAG) had already decided on such a constellation in a ruling from 2021 (
Judgement dated 8.9.2021, file no. 5 AZR 149/21).

The employee terminated the employment contract in due time. This was compounded by the fact that he previously mentioned to a colleague that he would no longer show up for work. The employer doubted the illness and refused to continue paying the salary. He based this, on the one hand, on the employee's announcement and, on the other hand, on the fact that the AU would tailor the length of the notice period. The evidence was provided by interrogation of the attending physician after appropriate exemption from confidentiality. The plaintiff, for his part, was unable to fulfill his burden of explanation of the existence of an incapacity for work in sufficient detail in the process.

The BAG gave the employer the right: Already the time practice

Agreement between dismissal and sick leave (so-called temporal coincidence) could give rise to serious doubts about the certified incapacity to work. In the present case, the employer succeeded in shaking the AU's evidentiary value.

The Lower Saxony LAG also recently had to decide on a similar case, in which, however, the chronology of events was exactly the opposite (Judgement of 8.3.2023, Ref.: 8 Sa 859/22).

An employee called in sick with an AU. The following day, he received a dismissal from the employer. Although the employee then submitted two follow-up certificates which identified him as sick leave exactly until the end of the employment relationship, the employer refused to continue paying the salary. He also doubted the existence of an illness.

In this case, the court ruled in favour of the employee.

The LAG took up the BAG's criteria for shaking the evidentiary value of AU as correct and is of the opinion that these should also be applied in the event of dismissal by the employer if the employee reports unable to work after receiving them.

However, the court made an important distinction here: in this case, the first sick leave preceded the dismissal. There is therefore no necessary causal link between dismissal and sick report, which would be necessary to shake the AU's evidentiary value. In short, the sick leave was not caused by the dismissal. The mere fact that an employee falls ill until his last working day before the end of a terminated employment relationship is not sufficient to shake the evidentiary value.

What does that mean in practice?

With its ruling, the BAG encouraged employers to question the employees' inability to work in comparable cases. In particular because of the employer's limited knowledge (regarding illness and diagnosis), it is up to the employee to explain these further and possibly release the attending physician from confidentiality.

However, care should always be taken! It is true that serious doubts about the employee's inability to work can be justified if there is an overlap in time between a dismissal and a sick leave. The evidentiary value of a medical certificate of incapacity for work is simply not limitless.

But the temporal coincidence alone is not enough in itself.

In similar cases, employers should not prematurely assume that the evidentiary value of an AU is shaken. In order to establish comprehensible and serious doubts as to the inability to work, they should set out factual circumstances which may arise from the certificate itself and from the overall circumstances of its occurrence. Consider, for example, a previous warning.

This means that it depends more on the specific circumstances.

But beware: The LAG's decision is not yet final, as the proceedings are pending before the BAG. It remains exciting and therefore it remains to be seen whether and to what extent the BAG will identify further circumstances. The last word has therefore not yet been spoken.

Our tip: The issue of sick leave in connection with layoffs is very topical and is more common in the world of work. It is therefore not surprising that the courts have had to deal with this again and again recently. Especially when an employee has to leave the company involuntarily, there is usually potential for conflict. This makes a well-organized and smooth offboarding process all the more important for employees, which, above all, can contribute to avoiding legal disputes and creates an appreciative climate. Employers and employees should come apart on good terms during the off-boarding interview.

Because remember: it is not only the first impression that counts, but also the last one, which should remain positive despite the circumstances.

If you are actually considering terminating an employee, we also recommend the twinwin separation manager, which provides you with an automatic risk assessment, additional information and best practices!