Doubts about capacity for work?
Requirements for medical diagnoses
If the employer successfully challenges the probative value of a medical certificate of incapacity for work during legal proceedings, it may be necessary, at the employee's request, to summon the treating physician as an expert witness. In such cases, the Labor Court Berlin (case ref. 22 Ca 8667/23) establishes standards for judicial decision-making regarding the presence of illness-related incapacity for work.
*where only the masculine form is mentioned in this article, the feminine / diverse form is also included
Labour Court Belin, verdict of 19th March 2024 - Ca 22 8667/23
Facts of the case
The parties are in dispute over the plaintiff's claimed entitlement to continued remuneration.
The plaintiff terminated the employment relationship and requested the defendant to grant leave until the end of the employment period to visit her family. The defendant rejected this request, citing operational reasons. On the same day, the plaintiff informed the defendant by telephone of an illness and subsequently submitted medical certificates of incapacity for work. Despite being requested to do so, the defendant refused to pay remuneration for the relevant period. Consequently, the plaintiff filed a lawsuit for continued remuneration.
Reasons for the decision
The claim was well-founded. The court upheld the plaintiff’s claim for continued remuneration.
According to the case law of the Federal Labor Court (Bundesarbeitsgericht, BAG), proof of illness-related incapacity for work is generally established by submitting a medical certificate of incapacity for work pursuant to § 5 para. 1 Sentence 2 of the Continued Remuneration Act (EFZG).
In the present case, however, the employer succeeded in challenging the probative value of the certificate. Due to the long predicted duration of the incapacity for work, as well as the timing and circumstances of the individual case, doubts arose regarding the plaintiff’s actual illness. These indicators gave rise to the suspicion that the plaintiff might have feigned illness to enforce her previously rejected request for leave.
After conducting evidence proceedings, during which the treating physician was heard as a witness, the court ultimately concluded that the plaintiff was indeed unable to work due to illness during the disputed period.
Standards for evidence in medical diagnoses
In its ruling, the Labor Court established three key requirements for medical diagnoses:
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Personal Examination: The employee must have been personally examined by the doctor.
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Knowledge of the Performed Work: The inability to work must specifically relate to the duties required of the employee.
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Seriousness of the Diagnosis: It must be ensured that the diagnosis is not based on a so-called courtesy certificate.
Conclusion & practical tip
If the employer succeeds in challenging the probative value of a medical certificate of incapacity for work – for example, due to unusual circumstances of the case, deviations from the sickness absence policy (AU-RL), or a striking alignment with the notice period – the burden of proof shifts back to the employee to demonstrate incapacity for work. This proof is often provided through the offer of evidence and testimony from the treating physician. The labor court identified three key requirements in its ruling that are crucial for establishing the existence of incapacity for work. Employers are advised to verify the fulfillment of these requirements in advance, for instance, through a corresponding letter.
You may also be interested in this article: Foreign Medical Certificates of Incapacity
Author of this article: Janina Aue, Lawyer & Mediator
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