By judgement of 8 October 2021 (docket number: 5 AZR 149/21) contrary to the two previous instance decisions, the Federal Labour Court (Bundesarbeitsgericht – BAG) dismissed a claim for continued payment of remuneration. The Court has ruled that the evidential value of the certificate of incapacity for work can be affected in particular if an employee terminates his or her employment relationship, is then certified as incapacitated for work on the day of termination, and the certified incapacity for work precisely covers the duration of the notice period.
1. Facts
The claimant had been employed by the defendant as a commercial employee since the end of 2018. The claimant herself terminated her employment relationship with the defendant on 8 February 2019. At the same time, she submitted to the defendant a certificate of incapacity for work dated on the same day, according to which the claimant was on sick leave exactly until the expiry of the notice period.
The defendant then refused to continue to pay remuneration on the grounds that the evidential value of the certificate of incapacity to work was disturbed due to the exact correspondence with the remaining term of the employment relationship. The claimant requested continued payment of remuneration from the defendant
2. Ruling
The claimant had initially proved her alleged inability to work during the period at issue by means of a certificate of incapacity for work. This was the evidence provided for by law. The employer could undermine its evidential value if he presented actual circumstances and, if necessary, proved that there were grounds for serious doubts about the inability to work. If the employer succeeds in doing so, the employee must substantiate and prove that he was unable to work. The evidence could be provided in particular by hearing the doctor treating the employee after he had been released from his duty of confidentiality.
According to these principles, the defendant had weakened the evidential value of the certificate of incapacity for work. The coincidence between the notice of 8 February to 22 February 2019 and the incapacity for work certified on 8 February to 22 February 2019 gave rise to a serious doubt as to the certified incapacity for work. The claimant had therefore not met her burden of proof on the existence of an incapacity to work in a sufficiently concrete manner during the trial.
Accordingly, the claimant was not entitled to continued payment of remuneration due to the lack of a proven case of illness, which is why the court had to dismiss the claim.
3. Conclusion
The decision does not mean a fundamental change. Rather, it remains the case that certificates of incapacity for work have a very high evidential value for the actual existence of incapacity for work. If employers do not succeed in weakening the evidential value through circumstantial evidence, or if employees can subsequently provide full proof of their inability to work, the statutory obligation to continue to pay remuneration remains.
As the decision shows, it can still pay off for employers in individual cases to doubt the accuracy of certificates of incapacity for work.

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