“If You’re Ill, You’re Ill.” – Does This Still Apply Without Qualification?
For decades, the position under German employment law was clear:
A properly issued medical certificate possesses significant probative value. An employee certified as unfit for work is, as a rule, deemed incapable of performing their duties.
However, labour court practice has become markedly more nuanced.
A recent article in the Job & Career section of the news magazine DER SPIEGEL (author: Florian Gontek, 10 February 2026) examines the circumstances in which courts consider the evidentiary value of a certificate of incapacity for work (“Arbeitsunfähigkeitsbescheinigung”, AU) to be rebutted – and the potential consequences for both employers and employees.
The Principle Remains: A Certificate Carries Significant Evidentiary Weight
The case law – in particular the decision of the Federal Labour Court (judgment of 28 June 2023, docket no. 5 AZR 335/22) – makes clear:
A properly issued medical certificate continues to carry substantial evidentiary weight.
The threshold for employers to rebut that evidentiary value remains high. Mere suspicion is insufficient.
Each case turns on its specific circumstances.
When Courts Take a Closer Look
Gleichzeitig gibt es inzwischen typische Konstellationen, in denen Gerichte sensibler prüfen. Dazu gehören insbesondere:
At the same time, certain recurring constellations now attract heightened judicial scrutiny, particularly:
1. Sick Leave Closely Connected to a Dismissal
- Resignation by the employee or dismissal by the employer
- Incapacity for work commencing immediately thereafter
- The certificate covering (in whole or in part) the notice period
Even individual periods of certified incapacity within the notice period may give rise to doubt.
2. Incapacity Following Critical Personnel Discussions
- Immediately after conflict meetings
- Following annual performance or target-setting discussions
- Amid escalating internal tensions
In such cases, courts assess whether objective indications of a genuine illness exist.
3. Blanket or Extended Certificates
- Certificates covering longer periods (e.g. more than 14 consecutive days)
- Absence of a personal medical examination
- Purely online-issued certificates
The more limited the physician’s opportunity to examine the individual personally, the weaker the certificate’s evidentiary value may be.
What Does “Rebutting the Evidentiary Value” Mean in Practice?
If the evidentiary value is deemed rebutted, the certificate alone no longer suffices.
Formal taking of evidence then becomes necessary.
Employees may be required to substantiate:
- The specific medical condition
- Its symptoms
- Why it rendered performance of work impossible
- What treatment or therapy was undertaken
Employers may contest such assertions where serious doubts exist.
In extreme cases, the treating physician may:
- Be released from medical confidentiality
- Be examined as a witness before the court
This is a procedurally and medically sensitive area.
Risks in Cases of Abuse
If it transpires that incapacity for work was merely feigned:
- Employees face potential criminal liability and summary dismissal.
- Physicians may incur professional or criminal consequences if incorrect medical certificates were issued.
Such cases are rare – yet legally significant.
Practical Guidance for HR Professionals
There is a fine line between trust and the duty of oversight.
Strategically advisable measures include:
✔️ Avoid premature accusations
✔️ Identify sensitive constellations at an early stage
✔️ Document dismissal and personnel discussions carefully
✔️ Seek legal review where patterns appear conspicuous
✔️ Prepare thoroughly for potential litigation
Importantly, not every “unfavourable” temporal coincidence justifies doubt.
Practical Guidance for Employees
Employees who are genuinely ill remain protected. Nevertheless, it may be prudent to observe the following:
✔️ Prefer a personal examination over a purely online certificate
✔️ Ensure continuity in medical care
✔️ Describe symptoms clearly and consistently
✔️ Seek specialist evaluation in complex cases
✔️ Exercise particular care when sick leave coincides with notice periods
The more comprehensible and consistent the medical documentation, the more robust the certificate.
For Employment Lawyers: The Case Turns on Pleading and Burden of Proof
In practice, moral assessments are irrelevant. What matters is:
- Who must substantiate which facts?
- Who bears the burden of proof?
- When is the taking of evidence required?
- How is the case prepared strategically?
Recent case law does not alter the fundamental principle – it sharpens the focus on potential abuse scenarios.
Conclusion
The maxim “If you’re ill, you’re ill” still holds true.
However, a medical certificate is not beyond scrutiny.
The courts have not established a regime of distrust; rather, they have enabled a more differentiated assessment. For genuinely ill employees, nothing changes. For HR departments, employers and litigation counsel, however, the careful examination of the individual case has gained in importance.
