Many employers are taking advantage of a recent ruling by the Federal Labour Court (BAG) to avoid paying outstanding wages to employees. They view the ruling as a get-out-of-jail-free card and interpret it in creative ways. Therefore, it is always important to be clear about when certain actions by an employee can lead to unpleasant consequences.
But what is it actually about? It concerns the BAG ruling from 08.09.21 Az. 5 AZR 149/21 , which now serves as a template for employers to simply stop paying sick pay in cases of illness. This ruling has also led to outcomes that employees were unaware of or still are, and which works councils feared.
Which Ruling Exactly?
At the time, the Federal Labour Court ruled: If an employee resigns from their job and simultaneously submits a sick note that ends exactly when the notice period expires, the sick leave (AU) has no evidentiary value.
This implies in reverse: If you resign and submit a sick note covering exactly the duration of your notice period, your employer does not have to pay you wages. However, this changes if you provide counter-evidence proving that you are indeed ill.
According to many labour lawyers, this ruling is now being used as a get-out-of-jail-free card to withhold wages from employees. But it’s not that simple.
Labour and Regional Labour Courts Rush to the Rescue
Here are two cases where the respective employer came out on the losing end and had to pay:
In one case, an employee reported sick, and shortly thereafter, their employer issued a termination notice. Further sick notes followed the first one. Based on the perceived get-out-of-jail-free card from the BAG ruling, the employer stopped wage payments. Consequently, the employee was forced to sue and won the case. Unlike in the BAG ruling, the facts were completely different here.
As already mentioned, it was not the employee who resigned and then submitted a sick note; rather, the employee reported sick first and was subsequently terminated.
The employer had to pay not only the outstanding wages but also all legal and court costs. This case was heard at the Regional Labour Court of Lower Saxony Ruling from 08.03.2023, Az. 8 Sa 859/22 .
The next case was also one where the employer came out on the losing end and had to pay:
An employee whose fixed-term employment contract was about to expire reported sick two weeks before the contract ended. The office was already being cleared out, and keys for the office door were lying on the desk. The employer claimed that the sick note was fabricated and stopped wage payments, arguing that it was obvious the employee no longer intended to come to work.
However, the court saw it differently. Just because the office was being cleaned up and keys were left on the desk, along with personal items already missing, does not justify assuming the employee did not want to return to work. It always depends on the specific circumstances. In this case, the employee stated that they generally kept no personal belongings in the office and that the key often lay on the desk because it was a shared workspace. Regional Labour Court of Mecklenburg-Vorpommern 08.02.2023, Az. 3 Sa 135/22 .
Conclusion
Just because an employee resigns and simultaneously submits a sick note—even if the duration of incapacity for work ends exactly when the notice period expires—does not mean the employer can automatically assume that the sick note is fabricated. This will only be clarified in court and can also backfire on the employee in case of doubt.
My Opinion
It was foreseeable that employers would exploit this ruling. One cannot fully protect oneself from getting sick beforehand. However, if it can be avoided and the sick note is merely used as a reason to bridge the final weeks until changing jobs without having to show up, I believe one should bite the bullet. Time passes anyway. Even though it’s difficult. But as said, this is just my opinion.
