Extraordinary termination due to feigning incapacity for work

On 7 July 2017 the State Labour Court in Cologne (docket number 4 Sa 936/16) decided that a strong suspicion that an incapacity for work is feigned, is sufficient to justify a termination for good cause, in the course of a dismissal on grounds of suspicion, even though a certificate of incapacity exists.

In general a certificate of incapacity for work has such strong evidential value that a trial judge is usually entitled to consider the proof of incapacity for work as demonstrated. However, the evidential value of a certificate of incapacity can be displaced if the employer demonstrates reasonable doubts regarding the accuracy of the certificate of incapacity for work.

In this case, the State Labour Court in Cologne assumed the accumulation of such factors with regard to the following facts: First of all the employee applied several times for vacation for a specified period of time, in order to take part at a specific event, in this case an art exhibition preview. As the first requests for vacation were refused, the employee approached the business management several times to try to achieve the granting of vacation. After the final rejection of vacation by the business management the employee submitted a certificate of incapacity including the period of the intended vacation. Corresponding to the certificate of incapacity the employee was absent during the time of the supposed incapacity for work. The period of incapacity for work exceeded the intended vacation by a few days. Furthermore it could be demonstrated by a private detective that the employee visited the specific event. In the subsequent hearing by the employer the employee provided false information about her stay regarding the relevant time period of incapacity for work and denied she visited the art preview.

The attending physician issued a certificate of incapacity for psychological illness. According to the statement made by the attending physician, the diagnosis depended only on her own experience in this field without any implementation of an objective diagnosis.

The employee was required to pay the charges of the private investigator. By sec. 249 civil code, liability for damages includes all expenses the wronged party was permitted to consider as necessary to prevent any impending disadvantages, so far as there were concrete suspicious facts concerning the matter. The duty to compensate for damage is limited to an amount or rather to measures a reasonable economically thinking employee would consider as appropriate and necessary having regard to the circumstances of the particular case.

In practice, this means:  If an employee reports sick after his/her application for leave was finally rejected and there are further circumstances which give rise to reasonable doubts regarding the credibility of the incapacity for work due to illness, it could be useful to engage a private investigator in order to displace the evidential value of the certificate of incapacity. However, regardless of this judgement it should be noted the medical examination by the medical service of the health insurance pursuant to sec 275 paragraph 1a sentence 3 SGB V is in case of doubt a far easier, less expensive and less risky opportunity for an employer to remove any doubt regarding to the incapacity for work (cf. BAG 28.05.2009 – 8 AZR 226/08 – Rn. 26).