Is it permissible to call in sick when you're resigning?

In many companies, the combination of rising sick leave rates and unfair dismissal cases is attracting particular attention. Especially in dismissal protection law, it frequently happens that employees report sick with questionable reasons . The situation becomes particularly critical when the sick leave covers the exact notice period. This raises the question for employers: When am I, as an employer, allowed to question the certificate of incapacity for work?

Sick until the end of the notice period – Federal Labor Court sees serious doubts

A striking example is provided by the Federal Labor Court (BAG) in its judgment of September 8, 2021 (Case No. 5 AZR 149/21) . A clerical employee gave notice of termination of her employment contract effective February 22, 2019, and simultaneously submitted a certificate of incapacity for work (AU certificate) confirming her incapacity to work precisely until the end of the notice period. The employer questioned the validity of the certificate and only paid her salary until February 7. The BAG upheld this decision and declared the evidentiary value of the certificate of incapacity for work to be undermined in this case. The decisive factor was the temporal coincidence between the termination and the sick leave, which established "serious doubt as to the certified incapacity for work." The employee would have had to provide substantiated evidence that she was indeed incapacitated for work, for example, by questioning her treating physician. She failed to provide this evidence.

Employers must present concrete evidence.

In principle, a certificate of incapacity for work still carries significant evidentiary weight . Employers may only question this if there are specific circumstances that justify serious doubt. These include, for example, conspicuous overlaps in timing with the dismissal , unusual employee behavior, or violations of the incapacity for work guidelines. Even if the evidentiary value is undermined, the entitlement to continued payment of wages is not automatically lost. Employees can support their proof of incapacity for work with medical documents or by releasing their doctor from confidentiality.

Conclusion: Sick leave after termination of employment

In employment protection law, there are no general rules for dealing with sick leave certificates. Each case must be examined individually. Employers should clearly explain and document their doubts, while employees may have to prove that they were indeed unfit for work. Particular caution is advised in cases where illness and dismissal coincide – the Federal Labor Court (BAG) has shown that serious doubts can quickly arise in such situations.