Employees who are unable to work have much more freedom of movement in Germany than in Italy; they are not obliged to stay at home and do not have to fear check-ups by their employer. It is understandable that, in individual cases, the employer may suspect that the employee who has reported sick is actually well.

In two decisions of the Federal Labor Court (dated August 21, 2024, 5 AZR 258/23 and September 18, 2024, 5 AZR 29/24) that have pointed out the evidential value of a medical certificate can be undermined if there are actual circumstances that cast doubt on the illness. This is the case, for example, if the sick note coincides exactly with the notice period, so that the employee can immediately start a new job afterwards.

It should be explained to Italian readers that in Germany, notice periods cannot be compensated in practice and the employee remains on the employer's payroll until the end of the notice period. If they are unable to work, they cannot use up their vacation entitlement during the notice period and are therefore entitled to vacation compensation.

Against this background, it is understandable that employers hire detectives to check on the employee's condition. In a case decided by the Federal Labor Court (July 25, 2024, 8 AZR 225/23), this went downhill: Although the detectives observed that the allegedly sick employee was able to remove a (heavy) car battery and carry it to his apartment, among other things, the employee was able to convince the court that this did not jeopardize his healing process. In return, the employer was ordered to pay €1,500.00 in non-material damages, as the detectives' findings constituted health data within the meaning of Art. 82 I GDPR and had, of course, been stored without the employee's consent.