No prima facie evidence of a doctor’s sick note if it is issued in breach of the Incapacity for Work Directive

Last year, in its ruling of 28 June 2023, the Federal Labour Court (“BAG”) dealt with the evidential value of a certificate of incapacity for work, specifically with the question of whether the evidential value of a certificate of incapacity for work can be undermined in the event of a breach of the Incapacity for Work Directive.

Federal Labour Court, judgment of 28 June 2023 - 5 AZR 335/22

Requirements for a doctor’s sick note to obtain sick pay

Employees are entitled to continued remuneration in the event of illness for a period of six weeks, in accordance with Sec. 3 para. 1 sentence 1 of the Continued Remuneration Act (“EFZG”) if they are unable to work due to illness through no fault of their own. The burden of presentation and proof for the preconditions for entitlement to continued remuneration lies with the employee. As a rule, the employee can provide evidence by submitting a medical certificate of incapacity for work (“Sick Note”) within the meaning of Section 5, paragraph 1, sentence 2 EFZG, which – provided it has been properly issued - is the legally prescribed and most important evidence of incapacity for work due to illness. The employer can only undermine the prima facie evidence of the sick note by presenting and proving factual circumstances that give rise to concrete doubts about the employee’s illness.

Employer refuses sick pay to violation of Incapacity for Work Directive

In the case decided by the BAG, the parties” employment relationship ended on 30 September 2020 due to ordinary termination by the sued employer. The suing employee had submitted two Sick notes for the period from 7 September 2020 to 30 September 2020, an initial certificate from 7 to 20 September 2020, and a follow-up certificate from 21 to 30 September 2020.

The defendant refused to continue to pay the remuneration for the duration of the incapacity for work on the grounds that the Sick Note had not been issued in accordance with the requirements of the "Directive of the Federal Joint Committee on the assessment of incapacity for work and the measures for gradual reintegration in accordance with Sec. 92 para. 1 sentence 2 no. 7 Book 5 of the German Social Code" (Incapacity for Work Directive). Section 5, paragraph 1, sentence 4 of the Incapacity for Work Directive stipulates that certified symptoms (e.g. fever, nausea) must be replaced by a diagnosis or suspected diagnosis after seven days at the latest. In this case, the employee had submitted his copies of the certificates to the court, which certified joint pain in the right shoulder as the diagnosis (ICD-10 code) justifying sick leave in both relevant certificates.

The sued employer claimed that shoulder pain was merely a description of symptoms that should have been replaced by a diagnosis or suspected diagnosis after seven days at the latest in accordance with the Incapacity for Work Directive.

As this had not been done, the defendant considered this to be a violation of Section 5, paragraph 1, sentence 4 of the Incapacity for Work Directive, and as a result considered the evidential value of the Sick Note to be undermined. The sued employer therefore took the view that it was not obliged to continue to pay remuneration.

BAG: Evidential value can be undermined by violation

In response to the defendant's appeal, the BAG ruled that violations of the Incapacity for Work Directive can certainly be suitable in individual cases to undermine the evidential value of a Sick Note. It is true that the Incapacity for Work Directive is not binding for the parties to the employment relationship and that the EGFG sets out its own requirements in Section 5, paragraph 1, sentence 2 as to what information a certificate must contain regarding incapacity for work.

Not all provisions of the Incapacity for Work Directive are therefore relevant for determining whether the Sick Note has been issued "properly" within the meaning of Section 5, paragraph 1, sentence 2 EFZG. While mere formal requirements that only regulate the relationship between contract doctors and health insurance funds, such as forms and information for billing, do not play a role in the examination of the evidential value, violations of provisions of the Incapacity for Work Directive that are based on medical findings for the reliable determination of incapacity for work could, depending on the circumstances of the individual case, be quite suitable for undermining the evidential value of a sick note. This is because these provisions would be based on empirical rules and thus reflect the generally recognised state of medical knowledge.

Obligation to establish a coded diagnosis

The obligations of the contract doctors in Section 5, paragraph 1, sentence 3 and sentence 4 of the Incapacity for Work Directive to transmit a diagnosis coded according to ICD-10 to the health insurance company, and to replace previously established symptoms with a diagnosis or suspected diagnosis after seven days at the latest, would primarily serve the billing of contract doctor services in the health insurance system and therefore initially play no role in the proper issuing of a Sick Note in accordance with the EFZG. Nevertheless, a breach of Section 5, paragraph 1, sentence 4 of the Incapacity for Work Directive in conjunction with the ICD-10 code given by the doctor and the respective duration of the incapacity for work, could give rise to doubts as to the accuracy of the certificate. In the opinion of the BAG, such a breach could have an impact on the evidential value of the entire certificate from the outset.

However, in the case at hand, the BAG nevertheless considered the employee's entitlement to continued remuneration to be given – since there was no violation of Section 5, paragraph 1, sentence 4 of the Incapacity for Work Directive. This was because the coded medical diagnosis of shoulder joint pain contained a code number that could represent an illness according to both the chapter and subgroup of the ICD-10 system.

Practical tips

As the issue of a Sick Note for the employer does not contain any information on the cause of the sick leave and the underlying illness, the decision of the BAG only plays a role if the employee, as in the present case, voluntarily declares the diagnosis and introduces it into the proceedings himself. It may therefore be worthwhile for the employer to take a look at the diagnosis code in future dismissal protection proceedings. Depending on the overall view of the individual circumstances, such as the duration of the incapacity for work and the significance of the ICD-10 code, breaches of the Incapacity for Work Directive can undermine the evidential value of the certificate and lead to the employee losing the right to continued payment of remuneration.