Who has the burden of proof regarding the claim for continued payment of compensation in case of sickness?

According to German law, employees are entitled to six weeks’ paid sick leave. If the employee continues to be ill due to the same underlying illness, the six-week period will recommence, so long as six months have passed since the end of the employee’s last sick leave, or if one year has passed since the beginning of his/her first sick leave. If the underlying cause of illness is different, then the six-week period recommences provided that there was a break between the first and second illness.

The plaintiff had been deemed unfit for work due to back problems for six weeks. Before the sick leave ended he went to see his doctor again due to increased shoulder pain.  Four days later which was also the first day after the sick leave, the doctor  issued a new medical certificate, deeming the plaintiff unfit for work once more due to shoulder pain. The defendant refused to pay the plaintiff for this second time of absence claiming that there was no break between the first and second illness. The plaintiff took the case to court.

The German Federal Labour Court (Bundesarbeitsgericht) decided on 25 May 2016 (docket number  5 AZR 318/15) that the employee has to prove that the first illness has ended before the second illness started. The Federal Labour Court also held that the employee can generally rely on a doctor’s certificate for this. In the present case it was not clear whether the shoulder pain leading to the second sick leave had only started after the previous absence of work had ended. As the plaintiff could not give credible proof for his case, the Federal Labour Court decided in favor of the defendant.