Employment Law

The tensions between business chambers and labor unions rise regularly on this topic. Surveillance methods against justified control rights!

When someone is sick, they are sick. No ifs, ands, or buts! However, the fact remains that malingerers and shirkers in the domestic economy cost hundreds of millions per year through feigned sick leave. And they can drive company bosses to white heat.

Novices among the skivers can select suitable symptoms of their favorite illness with a few mouse clicks and then recite them to the general practitioner: gastric inflammation, tennis elbow, or a sprain – anything is possible. There are even cases where “patients” were signed off by the receptionist.

A feigned sick leave can – as the most serious consequence – even lead to immediate dismissal. Since sometimes (also) the “old severance pay” is at stake and an employee usually has nothing to lose, the matter often ends up before the Labor and Social Court, which tends to scrutinize the reason for dismissal particularly carefully. The burden of proof naturally falls on the employer.

Case law expressly approves the use of detectives when there are well-founded doubts about sick leave or behavior during sick leave. It must be clarified whether certain behaviors of the employee delay the healing process. The core problem: The employer is usually not aware of the diagnosis or medical treatment and behavioral recommendations. In addition to behavior detrimental to recovery, misuse is also conceivable if work is not resumed even though the ability to work has long been regained.

In practice, we are often tasked with monitoring recurring sick leaves, where often outrageous audacities come to light: long-booked vacations, home renovations, shoddy work in the social circle, or even direct work for a competitor or strenuous athletic activities up to preparing for a marathon usually leave no room for attempts at justification.

No supervisor will be able to let such conditions prevail in the interest of a good working atmosphere. Apart from that, the colleagues of the malingerer will be little pleased to have to perform his abandoned work as an extra task.

If misconduct/breaches of duty can be proven through detective work, the fee for a properly conducted operation can be reclaimed to a reasonable extent.