Monthly Dose Employment Law 05/2025

On 15 January 2025, the German Federal Labour Court (Bundesarbeitsgericht, BAG) ruled (5 AZR 284/24) on the evidentiary value of a medical certificate of incapacity for work issued in Tunisia.

Facts

• The plaintiff employee had been employed by
  the defendant employer as a warehouse worker since 2002. In 2017, 2019 and 2020, he submitted medical certificates of incapacity for work to the employer on 3 occasions that closely coincided with his vacation periods. Notably, after his summer vacation in 2017, he was hospitalized for the removal of kidney
  stones.
• Shortly before the end of a vacation in the summer of 2022, the employee informed the employer via email on 7 September 2022 that a local doctor in Tunisia had declared him sick for work until 30 September 2022. He attached a corresponding medical certificate issued by the Tunisian doctor and indicated that he would return late due to his illness.
• The plaintiff booked one day later a return flight for the day of his sick leave end. Upon his return to Germany, he presented another medical certificate issued by a German doctor.
• The employer refused to continue wage payments during the period of illness, citing doubts about the employee's actual incapacity for work. The employer had previously informed the employee that the certificate from 7 September 2022 did not constitute a valid certificate of incapacity for work.
• With his lawsuit, the employee sought a court declaration affirming his entitlement to continued remuneration during sick leave.

Reasons

• A medical certificate of incapacity for work
  issued in a non-European country generally carries the same evidentiary value as one issued in Germany.
• However, the certificate must clearly indicate that the foreign doctor distinguished between a mere illness and a condition that entails incapacity to work, thereby making an assessment aligned with the definitions under German labour and social security law.
• The evidentiary value of such a certificate under Section 5 (1) sentence 2 of the German Continuation of Remuneration Act (Entgeltfortzahlungsgesetz, EFZG) can be challenged if the employer presents specific circumstances that raise serious doubts about the actual incapacity for work. If the employer succeeds in shaking the evidentiary value, the burden then shifts to the employee to substantiate and prove the incapacity due to illness.
• In the specific case, it had to be taken into account that the certificate issued in Tunisia covered a period of 24 days, which exceeded the 14-day maximum period provided for in the version of the Guidelines of the Joint Federal Committee on the Assessment of Incapacity for Work and Gradual Reintegration Measures pursuant to Section 92 (1) sentence 2 no. 7 of the German Social Code, Book V (Guideline on the Assessment of Incapacity for Work, AU Guideline) applicable in September 2022 (Section 5 (4) sentence 1 AU Guidelines). Furthermore, the employee had previously submitted similar certificates from Tunisian doctors in connection with post-vacation illness in 2019 and 2020.
• Due to legal assessment errors, particularly regarding the required holistic consideration of all circumstances, the Federal Labour Court referred the case back to the Higher Labour Court (Landesarbeitsgericht, LAG) for a new hearing and decision.

Consequences for practice

The BAG’s decision highlights the principle that medical certificates of incapacity for work issued abroad are, in general equivalent in evidentiary value to those issued in Germany. At the same time, it makes clear that this evidentiary value is not unassailable and may be
questioned when there are specific grounds for doubt. Employers should therefore review foreign medical certificates to ensure that they distinguish between a simple illness and one that results in incapacity to work, and that they include information on the duration of incapacity and any follow-up appointments. Moreover, patterns of similar past behavior by the employee— such as recurring reports of incapacity immediately following holidays—may also be taken into account.

On 30 January 2025, the BAG ruled (2 AZR 68/24) that the submission of a delivery receipt for registered mail with delivery confirmation (Einwurf-Einschreiben) and its tracking information, without providing the delivery record, does not constitute prima facie evidence
of receipt by the addressee.

Facts

• The plaintiff was employed as a medical
  assistant in the defendant's ophthalmology practice. 
• On 26 July 2022, the defendant terminated the employment relationship by letter, which was sent via registered mail with delivery confirmation. The plaintiff denied in court that she had received the notice of termination.
• In the dismissal lawsuit, the defendantsubmitted as evidence only the mailing receipt for the registered letter and a printout of the tracking status retrieved online (“The item was delivered on 28.07.2022.”). The defendant was unable to produce a delivery record documenting the actual placement of the letter in the recipient’s mailbox.
• The LAG Baden-Württemberg ruled in favor of the plaintiff, holding that the employment relationship had not been terminated because receipt of the termination notice had not been proven. The employer appealed to the BAG.

Reasons

• Receipt of a declaration of intent: A written
  declaration sent to an absent party is deemed received once it reaches the recipient’s sphere of control in the ordinary course of business, such that under normal circumstances, the recipient has the opportunity to take note of it.
• No prima facie evidence from mailing receipt alone: The presentation of the mailing receipt does not, in the absence of a delivery record or reproduction thereof, constitute prima facie evidence of receipt by the addressee. A mailing receipt does not indicate a higher probability of delivery compared to a standard letter. It does not show that the postal carrier paid special attention to the actual delivery that would justify the conclusion that the letter was indeed placed in the recipient’s mailbox.
• No prima facie evidence from tracking information: A printout of the shipment’s tracking history does not indicate who delivered the item or whether the delivery process prescribed by Deutsche Post AG was properly followed.

Consequences for practice

This ruling by the BAG clarifies that, in order to establish prima facie evidence of receipt for registered mail with delivery confirmation, it is generally necessary to also present the delivery record in
which the postal worker documents the deposit of the item in the recipient’s mailbox. The mailing receipt alone is insufficient.

Since prima facie evidence can be rebutted, it is also advisable to name the postal worker identified on the delivery record as a witness. Furthermore, one should be aware that the delivery record is only available from Deutsche Post AG for a limited time (typically six months). Prompt retrieval is therefore recommended.

The LAG Niedersachsen ruled on 11 November 2024 (7 SLa 306/24) that the dismissal of an employee during the statutory waiting period under Section 1 (1) of the German Dismissal Protection Act (Kündigungsschutzgesetz, KSchG) was valid. According to the court, the burden of proof lies entirely with the employee to demonstrate that the dismissal was due to whistleblowing activities related to legal violations within the company.

Facts

• The plaintiff was employed from 1 April 2023 as Head of Legal at the defendant company, with responsibilities in compliance and whistleblower systems. The employment contract included a six-month probationary period, during which the employment could be terminated with one month's notice to the end of a calendar month.
• Disputes arose between the plaintiff and the managing director regarding the legal assessment of a contract, especially in relation to antitrust law concerns.
• The defendant terminated the employment on 28 September 2023, effective 30 September 2023, during the probationary period.
• The plaintiff contested the validity of the  ismissal, arguing that the  real reason for termination was his  report of legal violations to the managing director.
• The plaintiff considered  himself to be an internal  reporting officer under  the German  Whistleblower Protection  Act  (Hinweisgeberschutzgesetz , HinSchG) and claimed  that his dismissal was an  unlawful reprisal under  Section 36 HinSchG,  rendering the termination  invalid.

Reasons

• The LAG Niedersachsen upheld the dismissal, reinterpreting  the notice of termination  (in accordance with  Section 140 of the  German Civil Code  (Bürgerliches  Gesetzbuch, BGB)) to  apply the one-month notice period  contractually agreed, thus  setting the effective  termination date as 31  October 2023.
• The court found that the  material scope of the  HinSchG was not  triggered, as the plaintiff  had not submitted  substantiated facts  regarding the alleged  violations. The alleged  violations (including  violations of Section 2(1) (3)(b) HinSchG and  Articles 101 and 102 TFEU)  were not  sufficiently substantiated  in legal terms and  therefore did not justify  the application of Section  36 HinSchG. As a  result, the termination  was not null and void  under Section 134 BGB in  conjunction with Section  36(1) HinSchG.
• Nor was there any  indication of an unlawful  retaliatory measure  under Section 612a BGB;  there was no specific  causal link between the  alleged report of legal  violations and the  termination. The  dismissal was therefore  also not void under  Section 612a BGB in  conjunction with Section  134 BGB.

Consequences for practice

This ruling emphasizes that employees who seek  protection under the HinSchG  must present concrete,  plausible, and legally relevant  facts concerning the alleged violations. General or vague  allegations are not sufficient to  invoke Section 36 HinSchG.

For employers, this means that termination—especially during  the probationary  period or statutory waiting  period under Section 1 (1)  KSchG—remains permissible,  provided the specific  termination process is  transparently documented,  even if compliance concerns  had previously been raised by  the employee.

In its decision dated 9 December 2024 (16 TaBV
93/24), the LAG Hesse held that an employee’s personnel responsibility does not, in itself, confer the legal status of a “leitender Angestellter” (managerial employee) within the meaning of Section 5 (3) of the German Works Constitution Act (Betriebsverfassungsgesetz, BetrVG).

Facts

• The proceedings concerned the  classification of a store  manager as a managerial  employee under Section 5 (3) BetrVG. The  employer operates a  retail business with  approximately 3,500 employees across  around 70 branches in  Germany.
• The employer asserted that its organizational structure delegated essential entrepreneurial decisions, in particular those relating to personnel. Store managers exercised autonomous employer functions.
• In the case at hand, the store manager exercised personnel authority over 91 of the 97 employees at her branch.
• The Labour Court of first instance rejected the employer’s view, finding that the employee did not qualify as a managerial employee under Section 5 (3) BetrVG.
• The employer appealed, arguing that the store manager made all essential personnel and social decisions independently of corporate headquarters. The personnel responsibility of the store managers extended to roughly 95% of the staff at the site.
• The works council took the position that the Labour Court had correctly concluded that personnel responsibility alone is insufficient to establish the status of a managerial employee. This was particularly the case because the personnel authority in question extended to only 2.6% of the company’s total workforce (91 out of 3,500 employees). Moreover, the personnel responsibility was not exclusive: other individuals within the company were vested with comparable powers, which militates against a position of elevated status. Additionally, the store manager lacked the authority to hire department heads or their deputies.

Reasons

• The LAG Hesse affirmed that a managerial  function within the  meaning of Section 5 (3)  of the BetrVG exists only  where the employee  exercises personnel responsibility  of genuine  entrepreneurial  significance. The  authority to hire and  dismiss employees  particularly exemplifies  such a function, as these  powers constitute key  instruments of personnel  management and,  accordingly,  entrepreneurial activity.
• Entrepreneurial significance of personnel  responsibility: Employees do not qualify  as senior  executives if their  personnel authority is of  merely subordinate  importance to the  operation or the  undertaking as a whole.
  1. Number of employees: The  entrepreneurial  significance is  determined in particular  by the number of  employees to whom the  personnel responsibility  extends. If the number is  low, the criteria for  managerial employee  status are not met. In the  present case, the store  manager’s responsibility  extended to only  approximately 2.6% of  the total workforce—a  proportion too small to  establish entrepreneurial  relevance.
  2. Quality of employee group: Entrepreneurial significance may also be  present where the  responsibility concerns a  group of employees of  qualitative importance to  the company. This is  particularly the case  where the employees  perform highly qualified  tasks or are assigned to  critical business areas of  the enterprise. That was  not the case here—the  employees reporting to  the store manager  predominantly carried  out simple, instruction-based tasks.

• Furthermore, the store manager was embedded  in the company’s  operational chain of  command and did not  possess independent  strategic or  entrepreneurial decision-making authority. She merely implemented  centrally issued  directives.

Consequences for practice

The decision clarifies that the mere formal delegation of  personnel authority does not  suffice to establish the legal status of a managerial  employee. Employers must  assess whether the delegated powers are in fact of  entrepreneurial significance —both in terms of the scope and the quality of the  group of employees affected. Particular attention must be  paid to whether the  managerial employee holds  strategic discretion and bears singular, independent  responsibility.

In its judgment of 20 November 2024 (5 Ca 663/24),  the Bonn Labour  Court dismissed the claim of a  former sales manager seeking  damages for an alleged data  protection violation and  infringement of personality  rights arising from the  forwarding of private chat  messages by a works council  member to the employer’s  human resources department.

Facts

• The plaintiff and the defendant were both employees of the  same employer: the  plaintiff was employed as  a sales manager, while  the defendant  served as chair of the  company’s elected works  council.
• The plaintiff was involved in an "on-off relationship" with a subordinate employee, which, among other things, caused tension in the employer’s workplace.
• The employee submitted excerpts from a WhatsApp chat with the plaintiff to the defendant, who then forwarded them to the HR department.
• The plaintiff subsequently made an out-of-court demand for EUR 5,000 in damages, alleging violations of his personality rights and data protection rights arising from the allegedly unlawful disclosure of the chat messages. He argued that the transmission lacked a legal basis under Article 6 of the General Data Protection Regulation (Datenschutz-Grundverordnung, GDPR) and he was entitled to compensation under Article 82 GDPR.
• The plaintiff further contended that the forwarding occurred without proper involvement of the works council, its personnel committee, or any other authorized body, and was therefore legally unfounded. According to him, the disclosure ultimately led to his suspension and the conclusion of a termination agreement.
• The defendant argued that the forwarding occurred in the context of supporting the employee’s complaint under Section 84 of the BetrVG and denied any entitlement to damages. The plaintiff then brought legal action.

Reasons

• The Bonn Labour Court dismissed the action and
  denied any claim for damages based on a violation of personality rights or data protection law.
• The court found the forwarding of the chat messages to be lawful, as it was carried out at the request of the employee and in the context of exercising her right to lodge a complaint under Section 84 BetrVG and Section 13 of the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG).
• No violation of the plaintiff’s general right of personality could be established, as the interests of the employee and the works council were deemed to outweigh those of the plaintiff.
• The court also held that, from a data protection standpoint, the forwarding was justified, as the transmission of the chat content was based on a valid legal basis—specifically, Art. 6(1)(b) and (f) GDPR—to enable the employer to examine the complaint and consider potential employment-related measures.
• The court explicitly stated that no irrelevant or intimate content was disclosed—only information necessary for the review of the complaint.
• There was no legal requirement for the works council to hear the plaintiff prior to forwarding the messages.
• Furthermore, pursuant to Section 79a sentence 2 of the BetrVG, a works council member is not personally liable for data protection violations; rather, liability rests with the employer.

Consequences for practice

This judgment clarifies that, in the context of supporting  employee complaints, works  council members may be  authorised to forward personal  data to the  employer, provided that there  is a connection to the  employment relationship. No  personal liability attaches to  the works council member  when acting within the scope  of their official duties as a  member of the works council. The prerequisite is that the  data disclosure occurs within  the framework of a legitimate  complaint, is necessary, and is  limited to the extent required  to assess the complaint.

Nevertheless, both employers  and works councils should  ensure that data protection  requirements are observed  when handling employee  complaints and that any  disclosure of personal data is  restricted to the information  necessary for processing the  complaint. Careful  documentation of the  complaint-handling process  can help avoid future legal  disputes.