Case law updates

Sick note for the duration of the notice period can raise doubts: On 12 December 2023, the Federal Labour Court (Bundesarbeitsgericht – BAG) ruled that the probative value of several certificates of incapacity for work can be weakened. According to the court, this is possible if the incapacitated employee submits one or more follow-up certificates after receipt of the notice of termination that cover precisely the duration of the notice period and the employee commences new employment immediately after termination. The entitlement to continued payment of remuneration for the duration of the notice period can then be forfeited.

Private WhatsApp group is not a legal “free space”: On 24 August 2023, the Federal Labour Court decided that offensive and inhuman statements about colleagues in a private chat group consisting of seven participants require a special justification as to why employees were entitled to expect that their statements would not be passed on to third parties by any of the participants. If an employee is unable to do so, a termination based on this statement is possible.

Employers can prohibit the use of smartphones at the workplace without co-determination: On 17 October 2023, the Federal Labour Court ruled that an employer is able to implement a prohibition of the use of smartphones at the workplace without the need of co-determination with the works council. The works council claimed that such a prohibition would fall under the co-determination right pursuant to sec. 87(1) lit. 1 Works Constitution Act (Betriebsverfassungsgesetz – BetrVG) and would therefore require the works council’s consent. However, the Federal Labour Court ruled that the employer can unilaterally implement a restriction which aims at ensuring that employees perform their obligations in due form.

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