then I'll just go on sick leave … employment law aspects after termination of contract

In this article we take a close look at employment law aspects after termination of contract.

Starting point: Being made redundant is rarely a pleasant experience. In addition to the loss of a job, there are often hurt feelings involved. This makes you all the more reluctant to continue going to work until the terminated employment contract ends. You fear the whispering of your colleagues, your own motivation is at an all-time low and you logically have a lot to do to prepare for the upcoming application phase. It can be tempting to bridge the time between receiving your notice of termination and the actual end of your employment relationship with a medically certified sick note so that you no longer have to go to work but still receive your salary. "Then I'll just go on sick leave" - but is this really a good idea?

faking an illness can get you in trouble

Proof of sickness:

First of all: The burden of presentation and proof for the eligibility requirements for continued payment of salary (Continued Remuneration Act, Section 3 (1) sentence 1 / Entgeltfortzahlungsgesetz Germany - EFZG) lies with the employee. In Germany, employees generally prove their incapacity for work due to illness by submitting a doctor’s certificate of incapacity for work (German: Arbeitsunfähigkeitsbescheinigung - AUB). It is the most important form of evidence expressly provided for by law. A duly issued certificate of incapacity for work (i.e. issued by a doctor) has a high evidential value for the existence of illness-related incapacity for work.

In recent years, however, more and more employees have come up with the idea of calling in sick when they themselves have resigned or been dismissed. As a legal consequence, they no longer had to perform their work, but the employer still had to pay their full salary (up to 6 weeks). In a new decision by the Federal Labour Court (Bundesarbeitsgericht - BAG) in the year 2024, however, this dubious practice has now been named and a clear position has been taken against the fact that an AUB cannot be questioned:

Anyone who resigns and promptly reports sick several times risks continued payment of wages in the event of illness. This is because the probative value of a certificate of incapacity for work can also be undermined if employees report sick several times within the notice period. This applies in particular if they also carry out professional activities during this period (BAG, judgment of 18.09.2024, Ref. 5 AZR 29/24). However, the BAG considers an overall view of all circumstances to be decisive, which is why the Senate referred the case cited here back to the previous court instance, the Regional Labour Court (Landesarbeitsgericht - LAG of the state of Mecklenburg-Vorpommern. Germany is a federal republic which has 16 independent states and 18 Regional Labour Courts). The BAG had already ruled in the previous year that the probative value of a certificate of incapacity for work (AU) can be shaken if a sick note is submitted at the end of the notice period (BAG, judgment of 13.12.2023, Ref. 5 AZR 137/23). This ruling has been extended: it may be sufficient for this to be refused if there is a close temporal connection between the handover of the notice of termination and the submission of the certificate of incapacity for work.

The probative value of sick notes

With this decision, the Federal Labour Court has put further limits on a common but often dubious practice: Anyone who resigns and promptly reports themselves unfit for work several times risks continued payment of wages in the event of illness. This is because the probative value of a certificate of incapacity for work can also be undermined if employees report sick several times within the notice period, especially if they are also carrying out professional activities during this time (BAG, judgment of 18.09.2024, ref. 5 AZR 29/24). Incidentally, the same applies to “announced illness”, i.e. if an upcoming illness is “anticipated” in the professional environment at a more or less specific time before the sick note (AUB).

The probative value of the AUB can also be undermined if there are doubts about the employee's illness. This depends on the specific individual case, in particular whether the doctor complied with the legal requirements when issuing the certificate. For example, according to the Federal Labour Court, doubts about the correctness of an AUB can arise from violations of Section 5 of the Incapacity for Work Directive. The standard requires symptoms such as fever or nausea to be certified by a so-called ICD-10 coded diagnosis or suspected diagnosis on the seventh day of the certified incapacity for work at the latest. So – in no case you can get a carte blanche from the doctor. If the whole thing is decided in court, it always depends on the overall circumstances of the specific individual case.

See the opportunity!

This article explaining the system of AUBs in Germany may now be over. But this is precisely where mental coaching in connection with German employment law comes in: see the current situation as an opportunity to improve the overall situation! There are various ways to do this:

1) Talk to your former employer

It is a good idea to talk to your employer. No, this does not mean that you should beg them to continue the employment relationship with you after all! That would be a nice side effect; however, it is more important for you to receive honest feedback without pressure so that you can identify how you can present yourself differently in the next working environment. These are often cultural points that are not easily recognizable and require time and guiding to extract. You can talk to your former employer on your own, but it is also possible to have a moderated discussion as part of a mediation process.

2) Get a coaching

Regardless of the two points mentioned above you should consider getting yourself a coaching for a period of time in your career. This can not only give you confidence in job interviews, but also clarity about the best career field for you. In addition, there is the cultural classification and support, so that you have the opportunity to rethink, reclassify and, if necessary, change your behaviour.

I publish interesting questions about German employment law judgements on this blog regularly. If you need special advice tailored upon your individual case, don't hesitate to get in contact with me.

Find more articles on my blog.

photo / source: designed by illustac