19. Dec 16

Large numbers of employees phoning in sick – Employer’s options

If a lot of employees at a company fall ill at the same time, this may be problematic for the business. If, however, the employees are only pretending to be too sick to work, this could have employment-related consequences for them.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: If a lot of employees at a company phone in sick at the same time, this has the potential to effectively bring the business to a standstill. Moreover, the employer is obligated under employment law to continue paying wages. If, however, the employees are only pretending to be too sick to work, this can give rise to serious consequences. It can, for instance, constitute good cause justifying a dismissal, as the employer is technically being deceived and continued payment of remuneration obtained under false pretences. This may mean that any further collaboration would no longer be reasonable from the employer’s perspective and justify exceptional notice of dismissal with immediate effect.

If the employee presents a certificate of unfitness for work, it then becomes difficult for the employer to prove that the employee has not in fact fallen ill. This is because a medical certificate is considered to have a high probative value. Evidence of this kind would need to be severely undermined for notice of dismissal to be effectively issued. Employers therefore have few options in practice when it comes to taking action against employees who have reported that they are (allegedly) unfit for work. However, should this mistrust vis-à-vis the employee grow, the employer can under certain circumstances demand that a certificate of unfitness for work be furnished from the first day of illness.

According to the case law of the Landesarbeitsgericht Hamm (Regional Labour Court of Hamm), the employer may also have good cause to terminate the employment relationship if the employee gives notice of an impending illness without being sick at that point in time (Az.: 10 Sa 156/15). It held that if the employee gives notice in this way, this is sufficient to constitute good cause for issuing exceptional notice terminating the employment relationship on account of the employee’s conduct. The Court went on to say that by giving notice in this manner, the employee had indicated that he was prepared to abuse his right to continue receiving remuneration in order to obtain an unjustified benefit.

Terminating an employment contract can potentially prove to be challenging. Lawyers who are versed in the field of employment law can advise on drafting employment contracts, notices of dismissal, severance packages as well as in relation to other matters pertaining to employment law.

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