Germany: Medical certificate from abroad: same principles for the shaking of evidential value

An employee had a medical certificate issued beyond the duration of his holiday in Tunisia. The employer did not accept the certificate and refused to continue to pay the employee's salary for this period. The Federal Labour Court has now ruled that the evidential value of certificates from non-EU countries must be verified on the basis of the same principles as those from Germany.

Federal Labour Court, judgment of 15 January 2025 – 5 AZR 284/24

The initial case: employee falls ill during holiday in Tunisia

A warehouse employee who had been working for his employer since 2002 travelled to Tunisia for three weeks in 2022. Two days before the end of his holiday, on 7 September 2022, a local doctor issued him with a certificate due to his medical condition. According to this, he was unable to work until 30 September 2022 and was not allowed to travel during this time. The employee then booked a new ferry ticket for his journey home by car the following day and travelled back to Germany on 29 September 2022. Once there, a doctor issued him an initial certificate on 4 October 2022 up to and including 8 October 2022.

This was not the employee's first period of sick leave that coincided with holiday travel. He had already submitted medical certificates in this context in 2017, 2019 and 2020.

The employer did not accept the foreign medical certificate even after a further certificate from the Tunisian doctor had been submitted and refused to continue to pay the employee's salary in the event of illness in accordance with Sec. 3 (1) of the German Act on Continued Remuneration (Entgeltfortzahlungsgesetz – EFZG). The duration of the sick leave without an ordered follow-up appointment for the patient, the long journey home during this time and comparable incidents in previous years gave rise to fundamental doubts about the medical condition and his ability to work. In the opinion of the employer, these are sufficient to shake the evidential value of the medical certificate. The employee then sued for payment of the outstanding remuneration.

Federal Labour Court: overall view of the circumstances decisive for undermining the evidential value

After the employee was unsuccessful with his claim before the labour court, the Munich Regional Labour Court ruled in his favour on appeal and, in its judgment of 16 May 2024 (Case No. 9 Sa 538/23), ordered the employer to pay EUR 1,583.02 net plus interest.

The Federal Labour Court agreed with the Regional Labour Court that a certificate of incapacity to work from abroad was equivalent to a certificate issued in Germany, provided that the doctor differentiated between an illness on the one hand and an incapacity to work resulting from it on the other. However, whether the probative value of the certificate is undermined must – contrary to the statements of the Regional Labour Court – not be determined for the individual factors in isolation, but rather in the context of an assessment of the overall circumstances. If the employer can cast doubt on the probative value based on an overall view of the aspects, the employee then bears the full burden of presentation and proof for the existence of the conditions for a claim to continued remuneration. The Federal Labour Court found that the employer had succeeded in doing so with its submissions in the proceedings.

What happens next?

A final court ruling is still pending in this specific case. The Federal Labour Court referred the proceedings back to the Regional Labour Court in Munich. This court must now deal with the case again and determine in particular whether the employee can sufficiently demonstrate and prove the existence of incapacity to work due to illness as a prerequisite for the claim to continued remuneration.