Shaking of the probative value of AU certificates:

Certificates of incapacity for work form the basis for the employee's entitlement to continued payment of wages during illness. However, there are situations in which the employer can question the probative value of such certificates.

A recent ruling by the State Labor Court of Mecklenburg-Western Pomerania, ruling of March 21.3.2023, 2 – 156 Sa 22/4, illustrates the problems that can arise if the employer wants to shake the probative value of a certificate of incapacity for work. In the present case, an employee had given notice himself. He then worked for a few more days and was then unable to work for the remainder of the employment relationship – almost XNUMX weeks after all. The employee started a new job on the first day after the end of the certified incapacity for work. The employer then refused to continue paying wages for the period for which the employee had submitted certificates of incapacity for work. He argued that there were serious doubts about the inability to work and that the probative value of the certificates had been shaken. In particular, the timing indicates that the employee did not want to return to his job from the start.

However, the regional labor court (LAG) saw things differently and finally confirmed the employee's right to continued payment of wages and declared that the probative value of the certificates of incapacity for work had not been shaken. It was established that the employee had continued to work for a few days after receipt of the notice of termination and that the certificates presented also showed different diagnoses. These circumstances did not allow serious doubts about the inability to work.

In principle, the employer can shake the probative value of the certificate of incapacity for work by presenting objectively tangible, reliable facts and, in the event of a dispute, proving them that can raise serious doubts about the certificate of incapacity for work. Only objectively ambiguous, plausibly explicable facts are generally not suitable to justify serious doubts. In the specific case, however, the employer was not able to present any sufficiently reliable facts that called into question the employee's certificates of incapacity for work.