By Levke Christine Petersen, Firm:  Kliemt.HR

Can an employee take longer to report a continuing illness than when he or she first fell ill? Should the employer automatically assume that an employee who has been sick frequently and for a long period of time will continue to be sick even if he or she does not report? The Federal Labour Court (the ‘BAG’) has now also dealt with these questions and clarified that the employer can be entitled to terminate the employment contract if the employee is late in reporting a continuing incapacity to work.

What happened?

An employee who had been on continuous sick leave since July 2016 repeatedly violated the obligation to report his continued incapacity to work, and did not change his behaviour despite repeated warnings by the employer. Although the certified incapacity to work ended on a Friday, the employee initially did not report at all. Instead, he considered it sufficient to submit a follow-up certificate of incapacity to the employer’s doorman on the following Monday, which did not reach his superior until the next day. The employer subsequently terminated the employment relationship, and the employee brought an action for protection against dismissal. After the Labour Court upheld the employee’s claim for protection and the State Superior Labour Court (the ‘LAG’) also rejected the employer's appeal, the BAG ultimately had to provide clarity.

The problem

The focus of the decision is the question of whether the late notification of a continuing incapacity to work can justify a dismissal for conduct-related reasons. The BAG had previously held that late notification of the initial illness can justify dismissal, but it had not addressed late notification of continuing incapacity. The LAG had taken the view that a late notification of continuing incapacity was less serious for the employer, since the employer was not unprepared for the employee’s absence in that context.

The decision: dismissal may be justified

The BAG clarified that an employee’s culpable violation of the obligation to immediately report a continuing incapacity to work can justify a dismissal for conduct under the applicable labour statute, and referred the case back to the LAG. According to the law, employees are required to notify the employer of their incapacity to work and the probable duration of the incapacity. This also includes an obligation to immediately report any incapacity that continues beyond the originally notified expected end date, because the duty to notify is intended to enable the employer to prepare for the employee’s absence as early as possible. This need to prepare would continue unabated even in the case of continued incapacity to work.

For this reason, the employee must notify the employer immediately even in the case of continued incapacity to work. According to the legal definition, immediate notification requires that there is no culpable delay. If the employee makes use of a messenger, he or she also bears the risk of timely and accurate transmission.

If there is no new factual submission, the LAG is likely to come to the conclusion that the plaintiff employee culpably delayed in reporting his continuing illness. He could have contacted his superior in person (if necessary by telephone or e-mail) on the Monday after the original notice ended. The employee bears the risk of timely transmission by the doorman, who should probably be qualified as a messenger.

With regard to the necessary weighing of interests, the BAG stated that late notice of the continuation of an incapacity to work can affect the employer just as seriously as a late notification of the initial incapacity to work. Thus, the BAG clearly rejected the view advocated by the LAG in the previous instance. Rather, the employer may rely on work resuming after the end of the reported incapacity to work. The employer does not have to reckon with having to continue to absorb the volume of work elsewhere. In particular, there is no general principle of experience according to which it is unlikely ‘without a statement to the contrary’ that an employee will return to work after a long period of incapacity and a large number of subsequent sick notices.

Within the framework of the weighing of interests in each individual case, it must also be taken into account whether the employee was scheduled for work on a fixed date, was replaceable by other colleagues, or whether there had been operational disruptions. The LAG still has to evaluate these factors in the context of the new decision.

Conclusion

The decision is welcome. The BAG has convincingly clarified that employees are obliged to notify the employer immediately of a continuing incapacity to work, and must expect to be given notice of termination if they do not. After all, while the employer and the other workers face additional challenges due to an unforeseeably long period of absence from work, it is in most cases easy for the employee to comply with the legal obligation to notify the employer of a continuing illness; all it takes is an e-mail or telephone call. The employee should not assume that the illness has already lasted ‘long enough’ so that one day more or less does not matter. Anyone who does not follow these rules must bear the resulting consequences, up to and including termination.