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Christine Wahlig
Attorney at law
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Inside Workplace Law

Employee must prove incapacity for work if sick leave and dismissal coincide


If an employee resigns and is on sick leave on the same day for the exact duration of the notice period, there are serious doubts as to whether the employee is actually incapable for work. Employers may not have to continue to pay remuneration.

Incapacity for work during notice period

In the case at hand, an employee terminated her employment relationship. On the same day, she submitted a certificate of incapacity for work which indicated that she would be sick for the exact two weeks of her notice period. The employer refused to continue to pay remuneration for the period of sick leave, i.e. until the expiry of the notice period. The employer was of the opinion that the evidential value of the certificate of incapacity for work was compromised because the sick leave covered exactly the notice period.

Employees must prove incapacity for work

The Federal Labor Court (08.09.2021 – 5 AZR 149/21) has now ruled, as recently published in a press release, that the employee was not entitled to continued payment of remuneration for the sick period. In general, the employee must prove the incapacity for work for a certain period in order to receive continued payment of remuneration. This is usually achieved by submitting a certificate of incapacity for work, which is the legally provided means of proof.

Certificate of incapacity for work was compromised

However, an employer can compromise the evidential value of a certificate of incapacity for work if it can present and prove circumstances that give rise to serious doubts about the incapacity for work. If the employer succeeds in doing so, it is up to the employee to prove their inability to work, e.g. by questioning the attending physician. In the present case, the connection of the timing and period of sick leave with the timing of termination and the notice period was sufficient to compromise the evidential value of the certificate of incapacity for work. Thus, the employee had to prove her inability to work, which she did not succeed in doing. Consequently, she was unsuccessful in her claim for continued payment of remuneration.

Practical point

In practice, sick leave and resignation often coincide. This may give rise to serious doubts about the actual incapacity for work. Employees must then prove their inability to work. Employers can hold back remuneration for the sick period, but run the risk that the incapacity for work will be proven in court.

Verena Braeckeler-Kogel
Verena Braeckeler-Kogel, MAES (Basel)

Verena Braeckeler-Kogel specializes in international employment law, restructurings, company closures and relocations as well as in business transfers with particular expertise in finance, banking and insurance industries.

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