12. Feb 16

LAG Hesse: Dismissal without notice valid due to forged sick note

If an employee submits a forged doctor’s certificate for sick leave (Arbeitsunfähigkeitsbescheinigung), this may result in dismissal with immediate effect.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Employment law provides that an employment contract can be terminated without notice if the employee breaches his obligations to such an extent that it would no longer be reasonable for the employer to have to continue the employment relationship even until the next possible termination date under the ordinary rules for dismissal. Submitting a forged doctor’s certificate for sick leave can constitute a sufficiently serious breach of duty. That was the decision of the Landesarbeitsgericht Hessen (Regional Labour Court of Hesse) in its judgment of March 23, 2015 (Az.: 16 Sa 646/14).

In the case in question, an employee of many years’ standing took several days’ unpaid absence from her work without providing any formal justification. After she was approached about the failure to furnish any certificates, she submitted manipulated doctor’s certificates stating that one of her children had been sick and she therefore had to stay at home. However, the paediatrician specified indicated that he had not had any contact with the woman or her children on the days specified. The employer subsequently terminated the employment contract with immediate effect and, in the alternative, with ordinary notice. The woman lodged an action for wrongful dismissal.

The Arbeitsgericht Kassel (Labour Court of Kassel) granted the action. It said that although the woman’s conduct did justify dismissal without notice, weighing up the interests lead it to the conclusion that it was reasonable to expect the employer to continue the employment relationship. The Court held that a formal warning would have been sufficient in this case.

The LAG Hesse reached a different conclusion within the scope of the appeal proceedings. It held that the dismissal without notice was effective, as it was no longer reasonable to expect the employer to take milder measures such as continuing the employment relationship until the end of the notice period for ordinary termination or issuing a formal written warning. The doctor’s certificates were said to have been deliberately manipulated. The Court went on to say that the woman had acted intentionally and in a clandestine manner, which meant that repeated misconduct of this kind was to be expected.

It can potentially be difficult to effectively terminate an employment contract. Lawyers who are competent in the field of employment law can provide advice when preparing employment contracts, terminations, severance payments as well as with respect to other matters pertaining to employment law.

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