Inability to work after termination – continued payment of wages?

If an employee's certificate of incapacity for work is submitted in connection with a termination, the suspicion quickly arises that this could be faked. The employer rarely succeeds in providing proof, as courts generally attach a high level of evidentiary value to such a medical certificate. This evidentiary value can be shaken if the certificate of incapacity for work is submitted on the day the employee receives his or her own termination and lasts until the end of the employment relationship (BAG, judgment of September 8, 2021, no. 5 AZR 149/21).

Das LAG Niedersachsen (Az. 8 Sa 859/22, Urteil vom 08.03.2023) hatte sich nun mit dem umgekehrten Sachverhalt einer Arbeitgeberkündigung zu befassen.

In March 2023, an employee filed a dismissal protection lawsuit against his employer, who refused continued payment of wages after the employer terminated his employment and the employee was subsequently unable to work. It was an unskilled worker who had not been employed for a month. He submitted a certificate of incapacity for work for four days on May 2nd, 2021, and was properly terminated on the same day at the end of the month. The employee received the notice of termination a day later, whereupon he submitted two more sick notes, so that he was considered unfit for work until the end of the notice period.

The employer then refused to continue to pay wages on the grounds that the sick note occurred at the same time as the termination and lasted until the end of the employment relationship. However, the employee argued in court that the sick note was given one day before the notice of termination was received and therefore could not possibly be viewed as a reaction to the notice of termination.

The LAG Lower Saxony decided: According to the principles of the BAG, the evidentiary value of a certificate of incapacity for work can be undermined if an employee submits a sick note after termination, which precisely covers the remaining period of the employment relationship. In addition, in the BAG case, the termination was given by the employee.

However, since the employee's sick note in this case took place before the notice of termination was received and the party terminating the notice was the employer, the evidentiary value of the certificate of incapacity for work was not shaken. The employer therefore had to pay the outstanding wages.

However, the LAG allowed the appeal to the BAG. The circumstances under which the evidentiary value of a certificate of incapacity for work is undermined have not yet been sufficiently clarified; especially if, as in the present case, recovery occurs at the start of the new job with the new employer.