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In a recent ruling by the Saxony Higher Labor Court (Az. 4 Sa 43/23), employers in Germany have been given more leeway to question the authenticity of sickness certificates presented by employees. The case involved an employed architect who attempted to negotiate a mutual termination of his employment contract and called in sick to avoid complying with the employer's request.
The court ruling favored the employer, stating that if there are legitimate doubts about the certificates, employees must present their specific concerns. The doubts in this case arose due to contradictory diagnoses, insufficient backdating of the first certificate, and a lack of a plausible explanation.
German labor law allows employers to request medical certificates (sick notes) to prove incapacity for work, especially if the sickness exceeds three calendar days or immediately during probation. If the employer suspects that the certificate is not genuine or the employee is not truly ill, they can request further proof or initiate investigations.
However, these actions are tightly regulated to protect employee privacy. Employers can only pursue investigative measures that are lawful, necessary, and suitable, and other less intrusive measures must be preferred. Direct covert surveillance, such as entering private property or secret recordings, is prohibited.
For suspicion of false sickness certificates, employers should first seek assessment through the Medical Service or through internal inquiries before escalating to more invasive steps. The court did not specify any particular evidence that employees must provide to prove their inability to work.
The failed termination agreement, retroactive sickness leave, and precise timing of sick leave until the expiration of the notice period raised further doubts about the authenticity of the certificates. As a result, the employer was justified in refusing to continue paying the architect's salary, and his subsequent lawsuit was unsuccessful.
This court decision is a significant precedent for similar situations in the future. Employers now have the right to demand evidence of an employee's inability to work if there are legitimate doubts about the authenticity of the sickness certificate. However, they must still respect legal limits on privacy and proportionality in their investigations.
The Association of Employment Law of the German Bar Association has highlighted this court decision, emphasizing the importance of employers' rights to question sickness certificates and employees' responsibility to provide sufficient evidence of their inability to work. This ruling underscores the need for transparency and honesty in matters concerning sick leave.
[1] German Federal Labour Court, Judgment of 26 February 2014, 2 AZR 529/13 [2] German Federal Labour Court, Judgment of 26 February 2014, 2 AZR 529/13 [3] German Federal Labour Court, Judgment of 26 February 2014, 2 AZR 529/13 [4] German Federal Labour Court, Judgment of 26 February 2014, 2 AZR 529/13
- Employers in the science and workplace-wellness sectors, along with those in the health-and-wellness industry, should be aware of the recent court ruling in Germany that allows them to question the authenticity of sickness certificates presented by employees, as long as they respect legal limits on privacy and proportionality in their investigations.
- In the light of the court decision, it is essential that all employees, especially those with medical conditions, provide sufficient evidence to support their inability to work, to maintain a professional and trusting work environment in the science, workplace-wellness, and health-and-wellness industries.
