An employer warns an employee because he did not report sick to his manager himself, but asked a colleague to do it - rightly so?
The Emden Labor Court has decided that a sick note does not necessarily have to be made in person to the supervisor, but can also be made by a messenger (file number 2 Ca 263/21). If the employer therefore issues a warning, this is not effective and the warning must be removed.
How was the case?
A locksmith injured himself on the job and decided to see a doctor straight away. He did not personally report his incapacity to his manager, but asked his colleague to arrange this and left the place of work. The colleague also brought the illness message directly as agreed. The employer issued a warning on the grounds that the employee should have called in sick in person. The employee did not accept this warning and complained to the labor court.
The judgment
Paragraph 5 of the Continued Remuneration Act regulates the obligation of employees to inform the employer immediately of their inability to work and its probable duration. Immediately means without culpable hesitation, i.e. in principle directly on the first day of illness and at the latest at the start of work. Sending a letter by post, for example, would no longer be immediate, but a form of transmission would have to be chosen that reaches the employer immediately, such as calling in sick or deregistering by e-mail.
The labor judges agreed with the employee that he had fulfilled this obligation here. Although a very personal communication may be advisable in the course of good and confidential cooperation, it is not legally required. The sick note can also be fulfilled by a messenger such as a family member or - as here - a colleague. There is then no breach of an employment contract obligation that could lead to a warning. The employer was therefore defeated and had to remove the warning from the personnel file.
If a sick call is sent by a courier, the employee bears the risk that the courier will send the report correctly and without delay. Because just that the colleague knows about it is not enough. Unlike the supervisor, a colleague is not to be regarded as an "employer" within the meaning of the law, to which sick leave must be given. If the colleague does not report at all or too late, a warning may be justified depending on the individual case.
Attorney Dr. Alexandra Henkel is a specialist lawyer for labor law, business mediator and business coach.
