Doubting an employee's sick note: check the evidential value before you pay
A doctor's certificate of incapacity for work carries considerable evidential weight, including in its electronic form. That weight can be undermined, though, where facts give rise to serious doubts about the incapacity. The employee then has to set out and prove that they were in fact unable to work.
We act throughout Germany, and the initial review through aucheck is free of charge.
Your review
Certificates reviewed
Circumstances recorded
Evidential value assessed
Approach agreed
Continued remuneration
up to 6 weeks
When the evidential value may be undermined
The case law recognises many further situations. Whether doubts are justified always turns on the individual case, so an initial review is worthwhile even where none of the examples fits exactly.
Exactly matching the end of the notice period
The incapacity begins with the notice of termination and ends precisely with the employment relationship, including across several follow-up certificates. It makes no difference which side gave notice.
BAG, 8 September 2021, 5 AZR 149/21
BAG, 13 December 2023, 5 AZR 137/23
A seamless move to a new employer
The incapacity ends on the last day of the employment relationship, and the next day the employee starts with a new employer.
BAG, 13 December 2023, 5 AZR 137/23
BAG, 18 September 2024, 5 AZR 29/24
Activities during the period of incapacity
The employee holds client meetings, poaches clients or takes a long trip although the doctor has prescribed bed rest.
BAG, 18 September 2024, 5 AZR 29/24
BAG, 15 January 2025, 5 AZR 284/24
Unfit for work during or after annual leave
The incapacity is certified during annual leave, for instance abroad, or repeatedly follows on from periods of leave.
BAG, 15 January 2025, 5 AZR 284/24
Departure from the incapacity guidelines
Incapacity is certified for more than two weeks without reasons and without a follow-up examination, or is established more than three days retrospectively.
BAG, 28 June 2023, 5 AZR 335/22
BAG, 15 January 2025, 5 AZR 284/24
Inconsistencies in the account given
What the employee says about their symptoms does not match what the certificate states.
BAG, 26 October 2016, 5 AZR 167/16
BAG, 18 September 2024, 5 AZR 29/24
Several circumstances together
Other events that fall in the same period as an incapacity can also give rise to doubts, for instance a transfer, an instruction, a written warning or the end of a fixed term.
The same goes for conflicts at the workplace or an unusually high number of first certificates. Whether the doubts are enough to undermine the evidential value turns on the individual case.
How we support you
From reviewing the certificate to representation before the labour court, coordinated on request with unfair dismissal proceedings running in parallel.
Review
Review of the certificate of incapacity and the surrounding circumstances, including where the incapacity was established by telephone, in a video consultation or abroad.
Calculation
Calculation of the six-week period, including continuing illnesses and illnesses that arise during an existing period of incapacity.
Withholding
Withholding continued remuneration, with a reasoned letter to the employee.
Recovery
Recovery of continued remuneration already paid.
Solutions
Data-protection-compliant solutions for straightforward data exchange with your payroll department or your tax adviser, so that certificates, electronic retrievals and payroll data reach us directly.
Representation
Representation before the labour court where the employee sues for payment, coordinated with unfair dismissal proceedings running in parallel.
Free initial review: send the documents by email, receive a reasoned assessment
Send us whatever you have on the case: the employment contract, the certificates of incapacity as an electronic retrieval or on paper, the record of absences so far, emails and any other correspondence with the employee and, where notice has been given, the notice of termination.
Tell us briefly which circumstances raised your doubts, and attach the documents that go with them, for instance a written warning or a transfer. Not everything has to be there. Where something important is missing, we ask for it specifically.
We review the case and reply with our assessment. Only then do you decide whether and how to proceed.
Initial review
Assessment by a lawyer, with reasons, by email
Out-of-court steps
Withholding or recovery
Labour court proceedings
Representation at every instance
Individual solutions: On request we set up our own solution for straightforward data exchange with your payroll department or your tax adviser. Certificates, electronic retrievals and payroll data then reach us directly.
Attach the certificates or the electronic retrieval to the email. The initial review is free of charge and without obligation, and you decide on every further step yourself.
What does continued remuneration cost you?
A rough order of magnitude for one employee on a five-day week. Enter the gross monthly salary and drag the number of working days.
1 day
30 days
More than six weeks: for the same incapacity the entitlement runs for 42 calendar days at most. A new period arises only in narrow circumstances. We check that too.
We check free of charge whether you really have to pay this amount.
Submit the fileSimplified calculation: daily rate equals monthly salary times 3 divided by 65, employer's contributions at a flat 21 per cent, without contribution ceilings and without reimbursements under the U1 pooling scheme. Not legal advice.
Do I have to continue paying if an employee becomes unfit for work after notice of termination?
As a rule yes. Notice of termination does not affect the entitlement to continued remuneration, and the certificate of incapacity is the evidence provided for by statute. Where the certified incapacity covers exactly the remainder of the notice period, however, its evidential value may be undermined. That applies also where it is made up of several follow-up certificates, and on the case law of the Federal Labour Court regardless of which side gave notice. The employee then has to set out in detail and prove that they were in fact unable to work.
When is the evidential value of a certificate of incapacity undermined?
Where facts give rise to serious doubts about the incapacity. Examples are an incapacity that covers exactly the notice period, a seamless move to a new employer, activities during the incapacity or departures from the incapacity guidelines. The list is not exhaustive, and often the doubt only emerges from the coincidence of several circumstances. You do not have to disprove the incapacity, it is enough to set out those circumstances and, in a dispute, to prove them.
How long do I have to continue paying?
42 calendar days at most for the same incapacity. Where a further illness arises during an ongoing incapacity, no new six-week period begins. Where the employee later falls ill again with the same illness, a new entitlement arises only if they were not unfit for work because of that illness for six months in the meantime, or if twelve months have passed since the first incapacity began. We check that for you.
What does it cost to have a certificate of incapacity reviewed?
The initial review through aucheck is free of charge and without obligation. If we advise withholding, recovery or defending against a claim, we discuss the fee with you before we act.
All about employment law
Your contacts
Your case is handled by a specialist employment lawyer who argues continued remuneration before the labour court regularly. Where unfair dismissal proceedings are running alongside or a restructuring is coming up, we bring in the right practice areas in house.
Tell us about the case
Describe briefly what has happened and attach the certificates or the electronic retrieval. The initial review is free of charge.