If an employee receives a dismissal, he must continue working in return for the usual pay until the end of the notice period. If he has to take sick leave during the notice period, the employer must also pay the remuneration. In cases of sick leave after a dismissal, employers often suspect that the employee is pretending to be unable to work. In our article you find more information on the consequences of actual or feigned incapacity to work during the notice period.
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The most important information at a glance:
- Employers must pay remuneration for periods of sick leave of up to 6 weeks, even during the ordinary notice period.
- Proof of incapacity to work is provided by a medical certificate (“AU-Bescheinigung”).
- Feigning incapacity to work: If the employer is of the opinion that the employee is feigning incapacity to work during the notice period, the employer (1) may refuse to pay the remuneration for that period and (2) terminate the contract with a dismissal with immediate effect.
- However, the employer has to proof that the employee is feigning the incapacity to work. This is extremely difficult in practice. If the employer is unsuccessful, the termination without notice is invalid and the remuneration must be paid in retrospect.
Content
Employment relationship continues until the end of the notice period
If an employee receives a dismissal with a notice period, the employment contract remains unchanged, with the same rights and obligations, until the end of the notice period.
This period can be four weeks or, in the case of long-term employment, several months. During this period, the employee must continue to perform the work in return for the salary. Exception: The employer and employee agree on paid garden leave until the end of the notice period.
Sick leave after dismissal
If an employee is unable to work during the notice period due to sickness, the employer must continue to pay the salary for the period of the incapacity (paid sick leave) up to six weeks (if the notice period is longer) or until the end of the employment relationship. In the following chapters we discuss the requirements:
The employee must be “unable to work”
An employee is only entitled to paid sick leave if he is unable to work due to sickness.
Many employees mistakenly believe that sickness and incapacity to work is the same. This is not the case. Only sicknesses that prevent the employee from performing the specific work duties can lead to incapacity to work.
Example:
- A broken arm may cause short incapacity for a doorman. A pianist may be incapacitated for longer.
- A contagious illness in a home office does not create incapacity. An employee with many social contacts at the workplace may be incapacitated for longer.
Whether an employee is unable to work is decided by a medical practitioner. This is assessed on a case-by-case decision. The same applies to sick notes during a notice period.
Proof of incapacity to work
An employee must prove his incapacity to work, no matter if it comes up before or after a dismissal. He can prove his incapacity to work with a medical certificate (sick note/”AU-Bescheinigung”).
However, if an employer suspects a feigned sickness he can challenge the evidential value of a medical certificate in court. The employer must prove circumstances that prove “serious doubts” about the sickness.
Examples of “serious doubts” about a sick note following a dismissal:
- If an employee resigns and a sick note is issued on the same day for the full length of the notice period.
- The sick note is issued immediately after a dismissal by the employer.
- The sick note is issued following a meeting with the human resources department.
- The employee threatens the employer with a medical certificate.
- The sick note is issued immediately after the employer notifies the employee that the fixed-term employment contract will not be extended.
If the employer is able to prove “serious doubts” on the evidential value of a sick note, the employee must prove the sickness otherwise: (1) The employee can release the doctor from the duty of confidentiality. (2) Alternatively, the employee can provide detailed facts on the sickness, which effects it had on his health or name witnesses etc. It is advisable to seek legal advice beforehand.
Consequences of pretending to be unable to work
If an employee had been unable to work due to sickness, the employer must pay the remuneration, even during the notice period after a dismissal.
However, if the employer believes that the sickness is feigned, the employer can (1) refuse to pay the remuneration. (2) In addition, the employer can terminate the employment contract with a second dismissal with immediate effect (summary dismissal/”fristlose Kündigung”), even during the notice period of the first dismissal.
The employer has the full burden of proof for the allegation of feigned incapacity to work. If the employee is dismissed without notice, the employer must prove before a court that there was a “serious reason” (“wichtiger Grund”) to terminate the employment relationship immediately. In case of a feigned sickness the serious reason can range from serious misconduct, breach of trust or fraud (salary without work despite the employee was fit for work). If the dismissal is based on fraud, the employer must also prove the intention to deceive. In practice, this is extremely difficult to prove.
If the employer fails to provide proof, the dismissal without notice is invalid.
However, if the employer is successful in proving feigned incapacity to work, the employment relationship came to an immediate end with the dismissal. Further, it has huge financial consequences for the employee. This is explained in the following practical example.
A practical example of sick leave after termination
The employer dismissed an employee in July. Due to the duration of the employment relationship the notice period is five-months, which means the contract will end on 31 December. However, on 5 September, the employer finds out, that the employee had feigned his incapacity for work. He was summarily dismissed on the same day. If the dismissal without notice is deemed valid by a Labour Court, the following applies:
- The employment relationship will end on 5 September due to the valid dismissal without notice. The first dismissal with the 5 months’ notice for the 31 December is irrelevant.
- The employee will lose the remuneration from 6 September to 31 December.
- Further, the employee is not entitled to the paid sick leave for the period of feigned incapacity to work.
- The Federal Employment Agency (“Agentur für Arbeit”) imposes a suspension period of 12 weeks, meaning that the unemployment benefits are reduced by 12 weeks and will only be paid out later.
- Depending on the severity of the situation, a criminal charge for attempted fraud or fraud may be filed. However, the employee must have acted intentionally. This will be difficult to prove.
We strongly recommend consulting a lawyer specialising in employment law if the employer terminates the employment relationship without notice. During a first consultation, the attorney will be able to provide an initial assessment of the prospects of success and discuss how to proceed.
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