If an employee quits and is on sick leave on the day of the dismissal, this can shake the evidential value of the certificate of incapacity for work (AU), in particular if the certified incapacity for work precisely covers the duration of the notice period, ruled the Federal Labor Court in Erfurt on Wednesday.

A commercial employee from Lower Saxony had sued (5 AZR 149/21).

The employee of a temporary employment agency had given notice at the beginning of February 2019 at the end of the month and submitted a certificate of incapacity for work on the same day. According to the employer, on the day of the exhibition, she reportedly announced by telephone to a colleague in her company that she would no longer be coming to work. There was no question of incapacity for work in the conversation. The Lower Saxony State Labor Court had upheld the woman's complaint and confirmed the right to continued payment of wages.

However, contrary to the decision of the lower courts, the Senate upheld the employer, who had questioned the sick leave and had not continued to pay, and dismissed the lawsuit. From the judges' point of view, the evidential value of the AU was shaken because it covered exactly the remaining term of the employment relationship. The plaintiff then did not provide sufficient evidence that she was actually unable to work for the duration of the AU.