Sick is sick

The Federal Labour Court (Bundesarbeitsgericht, BAG) ruled on 2 November 2016 (docket number: 10 AZR 596/15) that an employee who is incapable of work for health reasons does not need to come into the office for a personnel meeting requested by the employer.

In this case the employer called the sick employee into the office twice for meetings to talk about future potential for employment after the period of illness. The employee refused both times, referring to his medically certified incapacity. As a consequence, the employer served a written warning. The employee filed action for the removal of the warning from his personnel file and was successful in the lower courts.

The employer’s appeal before the Federal Labour Court did not succeed. The Federal Labour Court stated that the duty to participate in a personnel meeting is part of the employee’s contractual work obligations. However, during a period of incapacity for work the obligation to work is suspended. Therefore the employee is not obliged to come into the office, or fulfil any secondary obligations.

Nevertheless, the Federal Labour Court clarified that this does not mean that employers are generally forbidden to get in contact with incapacitated employees to talk about future potential for employment after the period of incapacity. Such contact is generally permissible if the employer has a legitimate interest in doing so. To call the employee into the office for such a meeting, however, is only permissible in exceptional cases for vital operational reasons provided the employee is healthy enough.