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26 February 2020
On 11 December 2019 the Federal Labour Court once again had to consider an employee's claim for continued remuneration in case of illness. The decision confirmed that an employee's statutory entitlement to continuation of remuneration is limited to six weeks even if they are suffering from an ongoing illness and, during that time, begin suffering from a different illness which also results in their incapacity to work (the so-called 'uniformity of incapacity' principle). A new entitlement to continuation of remuneration of up to six weeks exists only if the previous illness has ended when the new illness causes incapacity to work and the employee has regained their ability to work. The court also confirmed once more that in such cases, the burden of proof lies with the employee who claims continued remuneration beyond the initial six-week period.
The plaintiff was employed by the defendant as a geriatric nurse. The employment ended on 31 July 2017. From 7 February 2017 onwards, the plaintiff had been unable to work due to mental health issues. The defendant continued to pay remuneration for six weeks (until 20 March 2017). After that, the plaintiff received sick pay from her health insurance until 18 May 2017 based on numerous consecutive medical certificates issued by her family doctor, the last of which was dated 5 May 2017 and confirmed her incapacity to work up to and including 18 May 2017. On 19 May 2017 the plaintiff underwent scheduled gynaecological surgery. The previous day, the plaintiff's gynaecologist had issued a new (initial) medical certificate confirming the plaintiff's incapacity to work from 19 May 2017 until 16 June 2017, which was followed by another certificate confirming her ongoing incapacity to work up to and including 30 June 2018. The plaintiff did not return to work but took her remaining annual leave and started psychotherapy. From 19 May 2017 until 29 June 2017, the plaintiff received neither remuneration from the defendant nor sick pay from her health insurance.
In her claim, the plaintiff demanded payment of remuneration for the period of 19 May 2017 to 29 June 2017. She argued that she had been unable to work from 19 May 2017 due to a new illness and that her previous illness had already ended on 18 May 2017. The defendant rejected the request for payment, referring to the principle of uniformity of incapacity. The defendant argued that the initial sickness had continued beyond 18 May 2017 due to the plaintiff's ongoing mental health problems.
Uniformity of incapacity is one of the fundamental principles of the German law which requires employers to continue to pay remuneration to employees who are unable to work due to illness. In essence, it states that if a new illness arises before a prior illness has ended, the statutory six-week period of continuation of remuneration will be calculated from the beginning of the initial incapacity to work. This results from the fact that the continuation of pay relates to the incapacity to work and not the illness. If the incapacity to work continues without interruption regardless of whether it is based on multiple illness events, continuation of pay will still end after six weeks. Conversely, after an interruption, a new illness event that results in incapacity to work will trigger a new entitlement to continuation of remuneration of up to six weeks – even if the employee is able to work again only for a few hours – provided that it does not have the same fundamental cause as the previous illness. If the new illness has the same fundamental cause as the preceding one, a new entitlement to continuation of pay for up to six weeks will exist only if:
Previous Federal Labour Court decisions on the continuation of remuneration beyond six weeks have mainly focused on when the new illness began and the employee's obligation to prove both this and the fact that the illness is unrelated to the previous illness. However, in its December 2019 decision, the court focused more on whether the previous illness had ended. The court clarified once again that employees must prove that a previous illness has ended if the employer raises strong indications that the incapacity to work resulting from the new illness already existed during the period of incapacity to work based on the initial illness.
If employees submit several medical certificates within a short period, employers should take a closer look. If there are indications that an employee's ongoing incapacity to work is based on one continuous illness or if a new illness is likely to have started during the previous period of incapacity, the payment of remuneration should cease after six weeks and the employee should be asked to explain in more detail the circumstances and why, in their view, a new entitlement to continuation of remuneration applies.
For further information on this topic please contact Hagen Köckeritz at Mayer Brown by telephone (+49 69 7941 0) or email (firstname.lastname@example.org). The Mayer Brown website can be accessed at www.mayerbrown.com.
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