12. Jan 17

BAG: Staff appraisals when unfit for work – There are exceptions

The Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court, has clarified that sick workers generally do not have to appear at company appraisal meetings for staff. However, the Court also held that there are exceptions to this.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: An employee who falls ill does not have to turn up at the company’s premises, neither to work nor to take part in staff appraisals. That was the verdict of the Bundesarbeitsgericht in its ruling of November 2, 2016 (Az.: 10 AZR 596/14). However, not unlike many other rules, this one is also subject to exceptions.

The case in question before the BAG in Erfurt concerned an employee who had been sick for some time. He had several staff appraisals cancelled by referring to his certificate for sick leave. These were supposed to clarify further professional opportunities available to him. Due to his refusal to partake in the discussions, the employer ultimately issued the sick worker with a formal written warning. The latter then sued for removal of the formal warning from his personnel files. The courts of lower instance granted the claim and the employer’s appeal before the Bundesarbeitsgericht was unsuccessful.

The BAG stated that an employee is not obligated to turn up at the company’s premises or carry out ancillary duties in connection with his employment contract while he is unfit for work. Thus, he is also not obliged to take part in staff appraisals. This does not mean, however, that the employer is prohibited as a matter of principle from reaching out to the ill worker in a reasonable timeframe, e.g. in order to discuss further employment opportunities after the employee is no longer unfit for work. For this to happen, the employer needs to demonstrate a legitimate interest. That being said, the Court went on to say that the employee is not obliged to turn up at the company’s premises for these purposes, unless this is absolutely essential for operational reasons and the employee’s physical condition allows him to do so. In the instant case, the employer had not adduced evidence to this end, with the result that the formal warning needed to be removed from the personnel records.

The ruling nevertheless shows that employees are not always able to fall back on their unfitness for work. Lawyers who are experienced in the field of employment law can advise employers on all issues relating to the workplace.

For more informations:

https://www.grprainer.com/en/legal-advice/employment-law.html

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