Ruling of the Schleswig-Holstein Higher Labor Court: No continued payment of remuneration in the event of several sick notes following termination of employment.

In the case decided by the LAG Schleswig-Holstein (LAG Schleswig-Holstein, judgment of May 2, 2023, Ref.: 2 Sa 203/22), the employment relationship ended due to the employee's own termination. In her letter of termination, she simultaneously applied for her remaining vacation and requested that a confirmation of termination and her work papers be sent to her home address. She submitted consecutive certificates of incapacity for work for the remainder of the notice period. The employer had doubts about the actual existence of an incapacity to work and did not pay continued remuneration, which is why the employee filed a lawsuit. After the Lübeck Labour Court initially ruled in her favour, the Schleswig-Holstein Regional Labour Court came to the opposite conclusion with the following reasoning: If the letter of dismissal already indicates that the employee does not intend to be present at work again, this gives rise to justified doubts about an illness and undermines the probative value of medical certificates of incapacity for work that are issued for the exact duration of the notice period - possibly also divided into several consecutive certificates. If the employee is then unable to provide sufficient evidence that he was actually unfit for work, he will not receive continued remuneration.

There is much to suggest that this case law should not be limited to self-termination alone, but should also be applied to sick notes in response to unwelcome employer instructions, warnings and dismissals. However, it remains to be seen whether the ruling will become legally binding.

In any case, employers should pay close attention if an employee submits certificates of incapacity for work up to the end of the notice period - especially after being dismissed - and, if in doubt, may not initially pay the continued remuneration. Employees should also think carefully about such sick notes: In addition to the loss of continued remuneration, there is also a risk of criminal prosecution for attempted fraud against the employer.