Sick until the end of your notice period: Can your employer stop paying you?

The BAG case: Three certificates, two different results

An employee was initially certified unfit for work on 2 May 2022 until 6 May. He received his employer’s notice only on 3 May. Two follow-up certificates then extended his incapacity until his employment ended on 31 May. He started a new job on 1 June. The employer refused continued sick pay (BAG judgment of 13 December 2023, 5 AZR 137/23, paragraphs 3 to 8).

The Federal Labour Court distinguished between the periods. There were insufficient grounds to doubt the first certificate: on the established facts, the employee did not yet know about the forthcoming dismissal when it was issued. For the subsequent period, however, the court considered the evidential weight undermined. It remitted that part for further examination by the Regional Labour Court. This was not a final ruling that the employee had been healthy from 7 May or could not receive pay (paragraphs 9, 17 to 19 and 30 to 31).

Mere suspicion is not enough

A properly issued certificate is strong evidence. The employer must present and, if necessary, prove actual circumstances giving rise to serious doubts. The employer need not already prove that the illness was fabricated. In the BAG case, the court considered together the follow-up certificates issued after the employee learned of the dismissal, the exact end date on the final day of employment and the immediate start of the new job (paragraphs 12 to 14 and 26 to 27).

Our assessment: Do not compare end dates alone. When the illness began, when notice became known and what other circumstances exist also matter. Genuine illness can of course arise during a notice period. In a dispute, however, there must be sufficient evidence of it.

Several certificates may also be assessed together

This assessment applies both to an employee’s resignation and to dismissal by the employer. A succession of certificates does not automatically prevent doubts (5 AZR 137/23, paragraphs 18 and 24). On 21 August 2024, the BAG confirmed this approach: a decision to resign that has already been made and documented, for example in a resignation letter, can matter when assessing the timing, even if the employer receives the letter later (5 AZR 248/23, paragraphs 14 and 18 to 19).

These judgments do not permit an automatic refusal of all sick pay after notice. They concern the assessment of concrete indications and what each party must explain and prove in proceedings.

What employees must establish when pay is disputed

If the certificate’s evidential weight has been undermined, the actual course of the illness becomes important: which symptoms existed when, how severe were they and why did they prevent the contracted work? Treatment and medical instructions may also matter. In proceedings, testimony from the treating doctor may be considered after an appropriate release from medical confidentiality. Simply repeating that a certificate was issued is then insufficient (5 AZR 137/23, paragraphs 14 and 31).

Our recommendation: Initially prepare the medical details for confidential legal advice. Establish which information is needed in the particular dispute rather than sending all health records indiscriminately.

Continued sick pay has its own requirements and limits

Section 3 of the German Continued Remuneration Act (EFZG) generally provides up to six weeks of continued pay where illness prevents work through no fault of the employee. Statutory entitlement generally arises only after four weeks of uninterrupted employment; special rules apply to recurring incapacity caused by the same illness. When employment ends, continued pay normally ends as well. Section 8 EFZG contains exceptions, particularly where the employer dismisses the employee because of the incapacity.

Continue to notify the employer promptly of your incapacity and its expected duration. The electronic certificate procedure for employees covered by statutory health insurance does not replace this notification; timely medical confirmation remains necessary (section 5(1) and (1a) EFZG).

Next steps if your final salary is missing

Our practical recommendation: First preserve the precise timeline and the employer’s refusal to pay. Have any contractual or collective-agreement time limits for asserting claims checked as well. If you also wish to challenge the dismissal, a separate deadline of generally three weeks from receipt of written notice applies (section 4 of the German Protection Against Dismissal Act, KSchG). A dispute about pay does not replace that action.

• Record the notice, the date of receipt and when you first learned that employment was to end.
• Put certified absence periods, appointments, treatment and actual limitations in chronological order.
• Have your employment contract, payslips and the employer’s explanation available.
• Have the pay claim and any challenge to dismissal assessed separately.