Termination in case of the threat of taking sick leave

Employees who respond to an instruction by their employer with the threat of taking sick leave can be dismissed without notice. It is irrelevant whether the employee actually falls ill later or whether the instruction by the employer was unlawful. In a recent decision, the Higher Labor Court Rhineland-Palatinate (LAG Rhineland-Palatinate, 21.7.2020 – 8 Sa 430/19) has once again confirmed the previous ruling of the Federal Labour Court.

The facts of the case were that due to a breakdown in the employment relationship, the employer issued a leave of absence to the employee from work. In a telephone conversation with, among other things, the mention of a possible contract cancellation, the managing director requested the employee to appear at the workplace for a coordination meeting.  The employee refused to attend and indicated that ”he could still become ill”.  As a result, the employer terminated the employment relationship without notice. The employee filed a complaint against this and stated that, after receiving the notice of termination, he had been so stressed that a doctor had issued him with a certificate of incapacity for work for the day at issue. The defendant employer was of the opinion that the fact that the employee had threatened to take sick leave at a time that he was healthy was sufficient to undermine the relationship of trust so seriously that the employment could no longer continue.

The LAG Rhineland-Palatinate held that the extraordinary notice of termination was lawful, upholding the previous decision of the Federal Labour Court. The plaintiff had committed a substantial (secondary) breach of duty by the way in which he opposed the employer’s instruction. Announcing sick leave when there was an objectively non-existent illness at the time of such announcement, amounted to an abuse of the employee’s rights under the Continued Remuneration Act (Entgeltfortzahlungsgesetz) so as to gain an unjustified advantage. This entitled the employer to exercise a right of extraordinary termination for reasons of conduct under § 626 para. 1 German Civil Code and without any requirement for prior warning.

Sick leave certification by phone possible again

Employees can again contact their doctor by phone and receive a medical certificate of incapacity for up to seven days. The sick leave can be extended for a further seven days if necessary. Even for sick children up to the age of twelve, their parents can obtain a medical certificate of incapacity by telephone for home care. This regulation, due to the increasing number of COVID-19 cases, is valid throughout Germany and is initially planned to remain in effect until the end of the year.

Recent topics of German employment law

You are referred to our webinar “Arbeitsrecht aktuell” on 12 November 2020, which will cover further topics of German employment law. Our latest employment newsletter “Arbeitsrecht Highlights” covers COVID-19 related legal issues.

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