BAG on AU from abroad: Same evidential value, just as shakable
The question of the probative value of a certificate of incapacity for work issued abroad is a recurring issue in labour law practice. The Federal Labour Court (BAG) clarified this in its ruling of 15.01.2025 - 5 AZR 284/24: In principle, a foreign AU also has the same evidential value as one issued in Germany AU-Certification.
For employers, however, this does not mean that they have to accept every foreign AU without scrutiny.
Key statement of the BAG: Equal probative value
This means:
- A foreign AU also constitutes a Presumption of incapacity for work according to according to § 5 para. 2 EFZG
- Employers must accept these in principle
- A blanket rejection is not admissible, but a shattering of the probative value
This means that the Principle of equal treatment strengthened.
Requirements for an effective foreign AU
Certain requirements must be met in order for a foreign AU to fulfil its evidential value.
Content requirements
The certificate must be recognisable:
- that a Incapacity for work present
- the period for which it exists
- that a doctor has made the diagnosis
Comparability with German standards
The certificate must be functionally comparable to a German AU. Purely courtesy certificates without a comprehensible medical basis are not sufficient.
When can the probative value be shaken?
The evidential value can also be undermined in the case of a foreign AU - for example, if special circumstances Doubtsjustify.
Typical constellations can be
- Illness in direct connection with holiday periods or a previous cancellation
- Conspicuous combination of travelling and sick leave
- Conspicuous accumulation of sick leave
- Lack of traceability of the medical findings
- Contradictory behaviour during the alleged illness
- Backdating of more than two days
Here, too, a Case-by-case assessment decisive.
Legal consequences for employers if the value of evidence is shaken
If the probative value is shaken, the following applies:
No automatic entitlement to continued remuneration
In case of doubt, the employee must Additional evidence to prove his incapacity for work.
Room for manoeuvre for employers
Employers can:
- refuse continued payment of remuneration
- request further evidence
- Involvement of the medical service in accordance with § 275 Para. 1 No. 3 SGB V
- Examine the facts more closely
- issue a warning or, if necessary, extraordinary cancellation
It is always important to document the doubts properly.
Practical tip: How to make the foreign AU resilient in the company
A clearly structured approach to foreign AUs is particularly recommended for internationally active companies.
These are useful:
- Clear internal guidelines for sick leave abroad
- Requirements for Form and content of the certificates
- Sensitisation of HR and managers
- Consistent documentation in the event of anomalies
This reduces uncertainties and enables legally compliant decisions to be made.
Conclusion
In principle, the foreign certificate is equivalent to the domestic certificate - however, its probative value can also be undermined. Employers should therefore carry out structured checks without reacting too hastily.
If you have any questions on this or other topics, please contact us - we will be happy to advise you.
To the contact form