Regional Labour Court Cologne, 14.09.2011, Ref.: 3 Sa 597/11
The Continued Remuneration Act (EFZG) regulates the payment of wages on public holidays and the continued payment of wages to employees in the event of illness in accordance with Section 1 EFZG, as well as economic security in the area of working from home for public holidays and in the event of illness.
According to § 3 EFZG, employees are entitled to continued payment of remuneration by the employer for 6 weeks if they are unable to work due to illness and are not at fault.
The employee's notification and verification obligations are regulated in Section 5 EFZG. According to this, the employee is obliged to inform the employer immediately of any incapacity for work and its expected duration.
If the incapacity for work lasts longer than three calendar days, the employee must submit a medical certificate stating the existence of the incapacity for work and its expected duration on the following working day at the latest.
According to § 5 para. 1 EFZG, the employer is entitled to demand the submission of the medical certificate earlier.
The above-mentioned judgement of the Cologne Higher Labour Court dealt precisely with the question of whether the employer can demand a medical certificate on the first day of illness.
FactsThe plaintiff, born in 1953, had been employed by the defendant since 1982. The plaintiff submitted a business trip request to the head of her work area for 30 November 2010. This was rejected.
A further enquiry by the plaintiff was also rejected. The plaintiff then called in sick for the intended day of her business trip.
The defendant then requested the plaintiff in writing to obtain and submit a medical certificate on the first day of the sick note in future. This letter had the following wording:
"Sick notes
Dear S ,
I would like to briefly recap the events of the past week.
You submitted a business trip request for Wednesday, 30 November 2010, which I did not comply with. You were informed of this in writing by S at the end of the previous week. On Monday 29 November, you asked again whether the trip could be approved for the following day (which I did not do). On 30 November, you called in sick. I asked for a doctor's certificate to be sent immediately. This certificate, issued on 1 December, was sent to me the following day, the same day you reported that you were well again.
These processes shake my confidence in this sick note.
I therefore ask you to consult a doctor on the first day of reporting sick in the future and to provide a corresponding certificate."
In a letter from her subsequent legal representative, the plaintiff informed the defendant that, in her opinion, there were no indications of any suspicion of abuse and, in particular, that there was no connection between the illness and the rejected business trip application.
At the same time, it asked the defendant to provide comprehensible reasons for the request made in the letter of 10 December 2010 or to expressly withdraw it.
For its part, the defendant pointed out in a letter from its subsequent legal representative that, in its opinion, the request to submit the medical certificate from the first day of incapacity for work did not require any justification.
The plaintiff then asked the defendant's company doctor by e-mail how many of the defendant's employees were obliged to submit a medical certificate on the first day of their illness and whether he considered this to be justified in her case. The explanatory note sent by the
e-mail submitted by the plaintiff's authorised representative:
"... I once took six months off for an operation, but apart from that I was hardly ever ill in the first 30 years of my W life. It's only now that I'm starting to listen to my body's signals more intensively and occasionally avoid hostility by taking time off. I often used to drag myself to the W even though I felt different. ..."
With her complaint received by the Cologne Labour Court on 30 March 2011, the plaintiff objected to the aforementioned instruction issued by the defendant on 10 December 2010.
Regional Labour Court CologneThe Cologne Higher Labour Court disagreed with the plaintiff's view and ruled that the plaintiff had no claim against the defendant for revocation of the disputed instruction of 10 December 2010.
Both for a claim under the law of obligations from Sections 611, 242 BGB and a quasi-legal claim from analogous application of Section 1004 BGB, the necessary continuing impairment of rights was lacking. This is because the defendant was authorised to issue the instruction at issue.
The legality of the instruction follows in this respect from Section 5 para. 1 sentence 3 EFZG. According to this provision, the employer is entitled to demand that the employee submit a medical certificate earlier than after three calendar days (§ 5 para. 1 sentence 2 EFZG).
The employer's request pursuant to Section 5 (1) EFZG does not require any justification or facts that would give rise to abusive behaviour on the part of the employee. This follows from the unambiguous wording of the standard in this respect and the structure of the law.
The legality of the instruction also does not fail due to the existence of a contrary company practice of the defendant. Contrary to the plaintiff's opinion, such a practice does not arise from the statement of the company doctor in the e-mail correspondence submitted by her. There, the company doctor had merely stated that "the instrument would always be used if there were significant under-three-day absences, e.g. in the case of an absence every second week, always on Mondays, always on Fridays, always on bridge days, always on certain scheduled shifts or other scheduled appointments and in the case of addicts".
At the same time, however, he pointed out that this list was not exhaustive, that he had no information on the number of employees who had received a request from the defendant pursuant to Section 5 (1) sentence 3 EFZG and that he could not provide any information on the labour law side.
Source: Regional Labour Court Cologne
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