When disagreements arise between employer and employee, both parties sometimes consider terminating the employment relationship. Until now, there seemed to be an easy path for employees: calling in sick, assuming that the employer was powerless. Especially after a dismissal has been given, it is not uncommon for employees to spend the rest of their employment on sick leave.
But the employer is by no means powerless here. The latest rulings by the Federal Labour Court have set clear limits here and expanded employers' options to review such sick reports in detail. In the event of a false sick report, the salary no longer has to be paid.
Distrust on the part of the employer is justified, especially when the sick report is made following a dismissal and covers exactly the rest of the working time...
The current case was a bit more complex and went through several instances: The employee first called in sick, which was followed by the dismissal. After giving notice of dismissal, he extended his sick leave until the end of working hours. In this case, the BAG took a close look: It differentiated between the first sick report and the subsequent one. While the first sick leave was not disputed and the employer must continue to pay the salary in this regard, the Federal Labour Court has complained about the subsequent certificates. In particular because the employee was able to work for another employer immediately afterwards without restrictions.
The Court also indicates that this case law also applies to other scenarios. For example, when an employee initially only notices signs of an imminent termination, for example through signals such as warnings or critical discussions, without the termination actually being given. It is quite possible that similar standards will be applied in these cases.
... But this suspicion is not always correct!
Interestingly enough, the Federal Labor Court has recently investigated these cases particularly thoroughly. Individual decisions were also made in favour of the employee, despite suspicious evidence. It also depends on the employee's specific representations: If the employee can plausibly present his causes of illness, which suggest that he was actually unable to work, the employer's skepticism can also be classified as unfounded.
This case law shows that both employers and employees should act with care and fairness in such situations. Employers are entitled to question sick leave, but must do so on a well-founded basis. Employees, in turn, should be aware of the potential consequences that reporting sick leave immediately after dismissal can have. In individual cases, this can even have criminal consequences, both for the employee and for the attending physician.
Are you currently facing a similar situation and would like to gain clarity about your legal options?
