Germany: Providing evidence when the probative value of a certificate of incapacity for work is undermined

The labor court had to decide on an employee's entitlement to continued payment of remuneration during illness in a case in which the employer had successfully invoked doubts about the actual illness of the employee concerned. The decision provides a good overview of some possible reasons that can undermine the evidential value of a certificate of incapacity to work, but also gives affected employees an answer as to how counter-evidence can be provided.

After giving notice of her own dismissal, an employee applied for vacation at the end of her notice period. This request was rejected by her manager on the same day and by the HR manager a few days later. On the day the HR manager rejected the leave request, the employee called in sick and submitted a doctor certificate for the individual’s incapacity to work for the remaining three weeks of the employment relationship. The employer informed the employee that due to the "temporal proximity of the notice of termination and the certificate of incapacity for work" and the employee’s previously expressed desire for vacation, there were "serious doubts about [her] incapacity for work" and announced that it would stop paying her salary. The parties are arguing in court about continued payment of salary for the period in question.

According to established case law of the Federal Labor Court, proof of incapacity for work due to illness is generally provided by submitting a medical certificate of incapacity to work pursuant to Section 5 (1) sentence 2 EFZG. A properly issued certificate has a high evidential value, so that in the event of a labor court dispute, the court can normally consider evidence of incapacity for work due to illness to have been provided if an employee submits a medical certificate in the legal dispute.

Due to the high evidential value of such certificate, a mere denial of incapacity for work by the employer is not sufficient. Instead, the employer can only undermine the probative value of such certificate by presenting and, in the event of a dispute, proving factual circumstances that cast doubt on the employee's illness. The evidential value of a certificate of incapacity for work can be undermined, for example, if the doctor has violated the provisions of the Incapacity for Work Directive (AU-RL) when preparing the certificate, insofar as provisions on the determination of incapacity for work based on a personal medical examination and on the duration of the incapacity for work to be certified are affected.

With regard to the expected duration of the incapacity for work, Section 5 (4) sentence 1 AU-RL stipulates that the incapacity for work should not be certified for a period of more than two weeks in advance. A certificate of incapacity for work for a period of up to one month may only be issued in accordance with Section 5 (4) sentence 2 AU-RL if this appears appropriate due to the illness or a particular course of the illness.

In the present case, there was the fact that the first certificate was issued for more than two weeks in violation of the directive, and the certificate was issued immediately after the rejection of the application for leave and ended on the last contractual working day, with the intention of starting a new job on the following day. In the present case, the court considered this argumentation to be sufficient to assume that the evidential value of the certificate had been successfully undermined. In other cases, a large number of
consecutive short-term illnesses have also been considered by the courts to be conspicuous, which are generally suitable for undermining the probative value of a doctor’s certificate.

If the employer succeeds in undermining the probative value of a doctor's certificate of incapacity for work, it is up to the employee to present specific facts and, in the event of a dispute, to prove that the employee is ill.

According to the Berlin Labor Court, this evidence does not necessarily require the obtaining of a (written) expert opinion (Sections 402 et seq. ZPO). Rather, the hearing of the attending doctor as an expert witness within the meaning of Section 414 ZPO is generally sufficient. The court applies the following standards for this:

• As part of the examination of witnesses, the court must be convinced that the determination of the disputed incapacity for work was preceded by a medical examination at all, which as a rule must have taken place directly in person.
• The doctor must have spent a certain amount of time on the examination, whereby, according to the court, just a few minutes are sufficient.
• Depending on the type of illness diagnosed, the court must also be satisfied that the doctor has taken the employee's physical, mental and psychological state of health into account when making the diagnosis.
• In particular, it must be ruled out that the certificate of incapacity for work is a "certificate of courtesy", the presentation of which was merely intended to provide the employee with a way to be absent from work with a formal "excuse", without this actually being due to illness.
• The medical diagnosis must therefore regularly be preceded by an interview with the employee regarding the activity performed and the associated demands and stresses, whereby the findings obtained in this respect must have been taken into account by the doctor when determining the reason for and duration of the incapacity for work.

Even if these statements are absolutely logical and comprehensible in view of the incapacity for work directive, it should be noted from a practical point of view that these requirements of the court will not represent a real hurdle in practice in the vast majority of cases. For example, it can be assumed that a treating doctor will always affirm compliance with these principles in the event of a witness examination following a previous sick note. Consequently, a successful challenge to the probative value of a certificate of incapacity for work in the context of an employment law case will therefore likely only to lead to a successful outcome in cases where it is not only the probative value of a single certificate but a series of multiple certificates. In the case of a single certificate of incapacity for work, it is highly probable that the employee will be able to successfully provide evidence by questioning the treating doctor based on the principles as outlined before.