Employer refuses to pay sick pay in Germany — when a sick note loses its evidentiary value

Starting point: the sick note is the strongest proof of illness — but not unassailable

Anyone who falls ill in Germany is entitled to full pay from the employer for the first six weeks (§ 3 EFZG). Proof of incapacity for work is the doctor’s certificate — the Arbeitsunfähigkeitsbescheinigung, or AU. For decades the courts have attached a very high evidentiary value to it: as a rule, the court assumes that whoever holds a certificate was ill.

But “very high evidentiary value” is not a statutory presumption. The turning point was the judgment of the Federal Labour Court of 8 September 2021 (BAG, 5 AZR 149/21): an employee resigned and on the same day handed in a sick note that covered her entire notice period — to the day. The BAG held that such timing raises serious doubts and undermines the evidentiary value of the certificate (Erschütterung des Beweiswerts). Since then, labour courts across Germany have been building a catalogue of situations in which the employer can successfully challenge a sick note.

The mechanism has three stages, and it is worth understanding because everything depends on it:

Stage 1 — the employee presents the sick note. The employee bears the burden of proving incapacity for work due to illness. A properly issued certificate will normally carry that burden.

Stage 2 — the employer presents circumstantial evidence. It does not have to prove that the employee was faking. It is enough to show concrete circumstances that raise serious doubts about the illness. The court always assesses them together, in an overall evaluation (Gesamtwürdigung) — a single indication is rarely enough, but several at once very much are.

Stage 3 — the burden shifts back to the employee. Once the evidentiary value has collapsed, the certificate alone no longer suffices. The employee must describe specifically what was wrong, what the symptoms were and why they made his or her particular job impossible — and offer evidence, above all the testimony of the treating doctor, released from medical confidentiality. Whoever fails to do this loses the sick-pay claim, even if genuinely ill.

Line one: the sick note that “matches” the termination

The most frequent and best-developed scenario: notice of termination and illness go hand in hand. The case law now covers both sides and almost every configuration of dates:

• The employee’s own resignation plus a sick note for the whole notice period — the classic from the BAG judgment of 8 September 2021 (5 AZR 149/21). A match to the day is a weighty indication.
• Termination by the employer — the same principles apply. In the case decided by the BAG on 13 December 2023 (5 AZR 137/23), the employee was already on sick leave when the employer’s notice reached him. He then kept submitting follow-up certificates (Folgebescheinigungen) exactly until the end of the notice period and started a new job the next day. The BAG: the evidentiary value of the follow-up certificates was undermined — not that of the first certificate, issued before the notice arrived.
• It does not have to match to the day. In its judgment of 18 September 2024 (5 AZR 29/24) the BAG clarified that a close temporal connection is enough — a work-free weekend between resignation and sick note saves nothing. In that case the employee resigned on a Friday together with a colleague, both were on sick leave from Monday until the end of the notice period, and — according to the employer’s submissions — he was still taking business calls from clients during his sick leave via call forwarding to his private phone. From 1 June both worked for a competitor. The BAG: evidentiary value undermined.
• The order of the dates does not decide either. The LAG Niedersachsen, in its judgment of 19 November 2025 (8 SLa 372/25), found the evidentiary value undermined even though the employee reported sick before his resignation had even reached the employer. What matters is that the illness “covers” the entire remaining period of the duty to work — at a moment when the end of the employment is already a settled matter.
• The other end of the sick note counts too. The LAG Baden-Württemberg, in its judgment of 28 November 2025 (7 Sa 33/25), decided the case of an employee who, after resigning, kept working normally for some time and only went on sick leave later — but the sick note ended exactly with the expiry of the notice period, and the next day she started at a competitor. The temporal coincidence therefore need not lie at the start of the sick leave. A “punctual” recovery timed for day one of the new job is enough.
• Minor deviations do not remove the doubts. The LAG Düsseldorf, in its judgment of 17 December 2025 (11 SLa 222/25), accepted an “almost exact” match between sick leave and notice period after a termination by the employer — the employee lost his sick-pay claim even though the match was not perfect to the day.

„Kündigt ein Arbeitnehmer sein Arbeitsverhältnis und wird er am Tag der Kündigung arbeitsunfähig krankgeschrieben, kann dies den Beweiswert der Arbeitsunfähigkeitsbescheinigung insbesondere dann erschüttern, wenn die bescheinigte Arbeitsunfähigkeit passgenau die Dauer der Kündigungsfrist umfasst.“

“If an employee gives notice of termination and is certified unfit for work on the day of the resignation, this can undermine the evidentiary value of the certificate — in particular where the certified incapacity covers exactly the duration of the notice period.”

BAG, judgment of 8 September 2021, 5 AZR 149/21 — our translation

How courts weigh the indications is put most clearly by the BAG itself in the 2024 case:

„Das Zusammentreffen derart ungewöhnlicher Umstände, die jeweils für sich betrachtet unverfänglich sein mögen, begründet in der Gesamtschau ernsthafte Zweifel am Beweiswert der am 2. Mai 2022 und am 13. Mai 2022 ausgestellten Arbeitsunfähigkeitsbescheinigungen.“

“The convergence of such unusual circumstances, each of which taken alone may be innocuous, gives rise — viewed as a whole — to serious doubts about the evidentiary value of the certificates issued on 2 May 2022 and 13 May 2022.”

BAG, judgment of 18 September 2024, 5 AZR 29/24 — our translation

The line does have a limit. The LAG Schleswig-Holstein, in its judgment of 23 January 2026 (5 Sa 143/25), held that the mere fact that a sick note ends at some point and the employee is healthy when starting a new job after the employment has ended does not, without additional circumstances, undermine the evidentiary value. In that case the employee kept working after resigning, only went on sick leave after a fall, and could document it — she named her doctors as witnesses and released them from confidentiality. The employer’s summary dismissal based on alleged malingering was invalid. The case law is not yet fully uniform in these “imprecise” configurations — this is exactly where today’s disputes are being fought.

Line two: sick notes from abroad — an issue for every expat in Germany

A scenario familiar to everyone working in Germany with family abroad: the illness starts during a stay in another country. Does a foreign certificate protect you like a German one?

In principle, yes. The BAG confirmed in its judgment of 15 January 2025 (5 AZR 284/24) that even a certificate issued outside the EU carries the same evidentiary value as a German one — provided it shows that the doctor distinguished between mere illness and incapacity for work. But the same judgment shows how easily that protection is lost. The employee fell ill towards the end of his holiday in Tunisia and received a certificate from a local doctor including a travel ban lasting several weeks. Despite the ban he returned to Germany before it expired, and a German doctor issued him a “first certificate” from which it did not appear that the incapacity had already existed earlier. On top of that, in previous years the employee had repeatedly fallen ill around his holidays. The BAG: all these circumstances must be assessed together — and it sent the case back, making clear that the evidentiary value of such a set of certificates is undermined.

„[E]iner Arbeitsunfähigkeitsbescheinigung, die in einem Land außerhalb der Europäischen Union ausgestellt wurde, [kommt] grundsätzlich der gleiche Beweiswert wie einer in Deutschland ausgestellten Bescheinigung zu […], wenn sie erkennen lässt, dass der ausländische Arzt zwischen einer bloßen Erkrankung und einer mit Arbeitsunfähigkeit verbundenen Krankheit unterschieden hat.“

“A certificate of incapacity for work issued in a country outside the European Union carries, in principle, the same evidentiary value as a certificate issued in Germany […] if it shows that the foreign doctor distinguished between a mere illness and an illness entailing incapacity for work.”

BAG, judgment of 15 January 2025, 5 AZR 284/24 — our translation

One element of this judgment matters especially in practice: the BAG applied the standards of the German incapacity-for-work directive (AU-Richtlinie) as “good medical standard” to the foreign certificate as well. Among other things, a first certificate should as a rule cover no more than two weeks. A foreign certificate signing off four or six weeks in one go, without justification, is therefore immediately open to attack.

Line three: the employee undermines his own sick note by his behaviour

Increasingly it is not the dates but the behaviour that decides the case. Three examples from recent rulings:

• Handing back work equipment “in advance”. The LAG Köln, in its judgment of 3 June 2025 (7 SLa 54/25), decided the case of a bus driver who went on sick leave immediately after a conflict over his assignment to new routes — and, when submitting his first certificate, handed back his work equipment because he expected to be dismissed. The court: whoever “foresees” on day one of an illness that he will remain ill until the very end of the employment undermines his own certificate. Medically, such a prognosis can usually not be justified.
• Working while on sick leave. The employer’s submissions about business calls to clients during the certified incapacity were among the circumstances considered in the BAG case of 18 September 2024 (5 AZR 29/24). Any documented professional activity during sick leave works the same way.
• Contradictory versions. When what the employee writes in his court submissions does not match what his doctor testifies, the court treats that as another indication against the certificate.

„Bereits diese exakte zeitliche Koinzidenz des Beginns der Arbeitsunfähigkeit mit der Rückgabe der Ausrüstung in subjektiver Erwartung der Kündigung durch die Beklagte erschüttert den Beweiswert der Arbeitsunfähigkeitsbescheinigung.“

“This exact temporal coincidence of the onset of the incapacity for work with the return of the equipment, in subjective expectation of dismissal by the defendant, already undermines the evidentiary value of the certificate.”

LAG Köln, judgment of 3 June 2025, 7 SLa 54/25 — our translation

The lesson from this line is simple: an indication can be anything that is more plausibly explained by an exit plan than by an illness — falling ill right after an unpleasant HR meeting, after a written warning (Abmahnung) or an unwelcome instruction, clearing the desk of personal belongings, professional activity during sick leave.

Line four: how the certificate was issued — an online sick note without examination is worthless

A separate group of cases concerns the way the sick note itself came into being:

• The sick note bought on the internet. The LAG Hamm, in its judgment of 5 September 2025 (14 SLa 145/25), dealt with a certificate purchased online for a fee, without any contact with a doctor. Such a “sick note” has no evidentiary value — the requirement of a direct personal examination follows from § 4(5) of the AU directive. Worse still for the employee: the court held that presenting such a certificate suggests to the employer that an examination took place, and therefore amounts to deception that can justify summary dismissal (fristlose Kündigung). To be distinguished from this: a telephone or video sick note issued by your own doctor within the applicable rules remains perfectly lawful.
• Violations of the AU directive. Backdating beyond what is permitted, or a first certificate covering far more than two weeks without justification — every such deviation weakens the evidentiary value (so already the BAG in its judgments of 28 June 2023, 5 AZR 335/22, and of 18 September 2024, 5 AZR 29/24).
• The signature “on call”. The LAG Niedersachsen (8 SLa 372/25) condemned the practice of a colleague in the medical practice signing certificates for patients he never examined — a gross violation of the personal-examination requirement.

What happens once the evidentiary value collapses — the trial where your doctor testifies

Undermining the evidentiary value does not yet mean the employee loses. It means the dispute enters a second phase, in which the employee must prove the illness by “normal” means. And here the rulings of 2025-2026 have set the bar high:

• The diagnosis alone is not enough. The LAG Baden-Württemberg (7 Sa 33/25) stressed that naming the illness and its typical symptoms will not do — the employee must describe, in lay terms, how the symptoms actually prevented him from doing his particular job.
• The doctor must know what he is testifying about. The LAG Niedersachsen (8 SLa 372/25) stated plainly that the unreflected adoption of psychological symptoms reported by the patient, without any follow-up questions, is as a rule no reliable medical finding of incapacity for work. In the same vein the LAG Düsseldorf (11 SLa 222/25) — the testimony of a doctor who does not know the patient’s job and does not remember the consultation will not convince the court.
• The risk of a weak witness lies with the party who needs him. If, a year later, the doctor remembers only what is in the patient file, that is the employee’s problem — he bears the burden of proof.

For employees there is a practical lesson already at the surgery: a thorough personal examination and proper medical records are not a formality but future evidence.

What this case law means for you

• The sick note still protects you — but not mechanically. A proper certificate from your own doctor after a personal examination remains strong evidence. It is undermined only by concrete indications assessed as a whole.
• Illness around a termination is a minefield. If you genuinely fall ill during the notice period, make sure your documentation is solid from day one — this is the configuration most frequently challenged today.
• A certificate from abroad must be done properly. Personal examination, a reasonable period (first certificate up to two weeks), a clear finding of incapacity for work — then it holds up like a German one.
• Do not buy sick notes online. It is not just the loss of sick pay — it is a ready-made ground for summary dismissal.
• Your behaviour testifies alongside you. Handing back equipment “in advance”, working while on sick leave, telling the doctor a different story than the court — the employer will use every such element.

And if you are an employer?

The same case law is a real tool for employers — including foreign companies employing staff in Germany. Three things decide whether it works:

• Gather the indications before you withhold pay. The dates of the termination and the sick notes, earlier absence patterns, the employee’s behaviour (returning equipment, announcements like “then I’ll just call in sick”), activity during the sick leave. A single indication is rarely enough — the strength lies in the combination.
• Keep the burden of proof in mind. To withhold sick pay it is enough to undermine the evidentiary value of the certificate. But if you want to base a dismissal on the alleged malingering, the burden of proof is yours — the LAG Schleswig-Holstein (5 Sa 143/25) rejected a summary dismissal partly because the employer had not asked for the treating doctors to be heard as witnesses.
• Do not miss the procedural moment. Applications for evidence — in particular the examination of the doctor — must be made correctly and on time.

Frequently asked questions

Can my employer simply refuse to pay because he “does not believe” my sick note?
Not on a mere hunch. He must show concrete circumstances raising serious doubts — timing that coincides with a termination, violations of the rules on issuing certificates, or your behaviour. Only then does the evidentiary value collapse, and it becomes your task to prove the illness in court.

I resigned and then genuinely fell ill. Will I lose my money?
Not if you prove the illness. The temporal coincidence only undermines the certificate as evidence — it does not create a fiction that you were healthy. What counts is solid medical documentation and the willingness to release your doctor from confidentiality. Without that, courts dismiss sick-pay claims.

Does a sick note issued abroad work in Germany?
In principle yes — a foreign certificate has the same evidentiary value if it shows that the doctor found you unfit for work, not merely ill. In practice the courts apply German standards to it: a personal examination and a first certificate covering, as a rule, no more than two weeks. Remember also your duty to notify the employer without delay and to provide the certificate.

Is a telephone sick note legal?
Yes — telephone and video sick notes from a doctor who knows you, within the applicable rules, are fully valid. What is worthless are certificates bought online without any examination or contact with a doctor. Using one can cost you not only money but your job.

What happens if the court concludes I was faking?
Loss of sick pay for the disputed period, repayment of amounts received without legal basis, and in serious cases dismissal — up to and including summary dismissal. The case law treats obtaining sick pay by deception as a grave breach of duty.

Analysis based on the case law: BAG, judgments of 8 September 2021 (5 AZR 149/21), 28 June 2023 (5 AZR 335/22), 13 December 2023 (5 AZR 137/23), 18 September 2024 (5 AZR 29/24) and 15 January 2025 (5 AZR 284/24), LAG Köln, judgment of 3 June 2025 (7 SLa 54/25), LAG Hamm, judgment of 5 September 2025 (14 SLa 145/25), LAG Niedersachsen, judgment of 19 November 2025 (8 SLa 372/25), LAG Baden-Württemberg, judgment of 28 November 2025 (7 Sa 33/25), LAG Düsseldorf, judgment of 17 December 2025 (11 SLa 222/25), LAG Schleswig-Holstein, judgment of 23 January 2026 (5 Sa 143/25). Translations of quotations are our own. This article is for information purposes and does not replace legal advice in an individual case.

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