A recent case shows how important sick pay home office rights are: A sick-listed employee had billed 500 home office days – and the employer still had to pay nearly €16,000. What exactly lies behind the case is not known in every detail. What is clear, however, is that the issue concerns many employees who work from home and fall ill. Anyone who knows their rights can defend themselves better when the employer refuses to pay.
What the Case Shows: 500 Home Office Days and Nearly €16,000
The case, which became known through media coverage, raises many questions at first glance: How can an employee be sick-listed and simultaneously bill 500 home office days? And why does the employer still have to pay nearly €16,000? The answer likely lies in the fact that the employer refused to pay wages and the employee had to enforce their claims. Such constellations are not uncommon in practice: employers doubt the incapacity for work when employees work from home, or they refuse payment because they believe the employee billed the home office days unjustifiably.
For employees, this is an important insight: Even in the home office, the same protective rights apply as in the office. An illness does not automatically stop at the front door. Anyone who is unfit for work may call in sick – regardless of whether the workplace is at home or on the employer’s premises. The case also shows, however, that employers cannot simply decide unilaterally whether to pay or not. They must comply with statutory requirements and cannot refuse wage payments without further ado.
Sick Pay Home Office: Your Statutory Entitlement
The statutory basis for continued pay during illness is the Continued Remuneration Act (Entgeltfortzahlungsgesetz, EFZG). Under this act, an employee is entitled to continued payment of their remuneration for the duration of their incapacity for work – but for a maximum of six weeks. This rule applies to all employees who have been in an uninterrupted employment relationship for at least four weeks. The place of work plays no role: whether you work on the employer’s premises, in the home office, or on the road – the entitlement exists equally. The rules for sick pay home office are the same as in the office.
It is important that you notify your employer of your incapacity for work without delay. If the illness lasts longer than three calendar days, you must submit a medical certificate no later than the fourth day. The employer may also demand it earlier. No special rules apply in the home office here either. Anyone who works from home must also submit the sick note within the same deadlines.
A common misconception is that you cannot be “properly ill” in the home office. That is not true. The sole decisive factor is whether you are unable to perform your contractually owed work due to the illness. If, for example, you are unable to work at the computer because of a severe flu, you are unfit for work – even if you live only a few metres from your desk. Incapacity for work is therefore not tied to the workplace, but to the specific activity.
Ill in the Home Office: When Are You Unfit for Work and What Applies?
The assessment of incapacity for work is the doctor’s responsibility. They determine whether you are ill and whether you can pursue your work. In doing so, they also take the specific activity into account. A professional driver with a slipped disc is unfit for work. An office worker with the same diagnosis may be able to continue working under certain circumstances if they predominantly sit. It is similar in the home office: it depends on the activity, not the location.
It becomes problematic when employees work despite being signed off sick. This can be regarded as working time fraud if the employer remunerates the work performance and continued pay is claimed at the same time. Because anyone who works is not unfit for work. In extreme cases, a warning or even summary dismissal may be threatened. Therefore: if you are signed off sick, you should not work – not even “just briefly” in the home office. In case of doubt, seek medical advice on whether you can work or not.
The billing of home office days can also lead to disputes. Anyone who works in the home office must record their working hours correctly. If sick days are billed as working days, the employer may regard this as deception. However, the case described shows that such billing does not automatically mean that the wage claim ceases to exist. What matters is whether the prerequisites for continued pay are met. The employer must specifically substantiate why they are refusing payment.
May the Employer Refuse Payment? Typical Conflicts
The employer may only refuse continued pay if they can prove that the prerequisites are not met. For this, they would have to demonstrate, for example, that the employee was not actually unfit for work or that they caused the illness through their own fault. In practice, this is difficult. A medical certificate is a strong indication of the existence of incapacity for work. The employer can raise doubts and involve the Medical Service of the health insurance fund if the illness lasts longer. In many cases, however, this does not lead to the payment being refused completely.
Typical conflicts arise when the employer claims that the employee billed the home office days unjustifiably. In that case, they cannot simply stop payment unilaterally. They must specify and prove their allegations. The employee, in turn, should carefully document their working hours and sick days in order to be prepared in the event of a dispute. Keep emails, calendar entries, and medical certificates – this can be decisive in court proceedings.
Another point of conflict is dismissal. Anyone who is dismissed because of an illness or because of alleged billing manipulation must act quickly: an action for protection against dismissal must be received by the labour court within three weeks. This deadline also applies if you work in the home office. If you are unsure whether your dismissal is valid, you should seek legal advice immediately. A first overview is provided by the checklist for the first days after dismissal.
Your Employer Does Not Pay: How to Secure Your Claims
If the employer refuses sick pay home office, you should proceed systematically. The first step is a written demand for payment. Set a deadline of about seven to ten days and point out your statutory entitlement. Keep a copy of the letter. Often such a letter alone is enough to move the employer to pay.
If the employer still does not pay after the deadline expires, you can file a claim with the labour court. You do not need a lawyer for this, but it is advisable to instruct a specialist lawyer for employment law. They will assess the prospects of success, draft the claim, and represent you at the hearing. The costs of the proceedings depend on the amount in dispute – with a wage claim of nearly €16,000, this is a considerable sum. If you cannot bear the cost risk yourself, legal aid may be an option. Alternatively, a litigation funder such as RechtStark can assume the costs if the case has prospects of success. The legal representation is always provided by an independent lawyer.
Even if the employer dismisses you because you assert your claims, you should defend yourself. A dismissal because of a justified wage claim is generally invalid. In this case, an action for protection against dismissal is the right remedy. You must file it within three weeks, otherwise the dismissal becomes legally effective. Further information on deadlines and procedure can be found in our guide to the action for protection against dismissal.
When a Specialist Lawyer for Employment Law and Litigation Funding Make Sense
Not every wage claim has to be fought out in court. If the employer merely hesitates, a lawyer’s letter can already trigger payment. At the latest when the employer expressly refuses payment or issues a dismissal, you should engage a specialist lawyer for employment law. They can realistically assess the prospects of success and advise you on the next steps.
A frequent obstacle is the fear of legal costs. Labour court proceedings can become expensive, especially if they go through several instances. This is exactly where litigation funding comes in: a litigation funder examines your case and assumes the costs of the proceedings if successful. In return, they receive a share of the amount won. If you win, you pay from the awarded sum; if you lose, the litigation funder bears the risk. This can be a great relief, especially with wage claims.
RechtStark is such a litigation funder with a focus on employment law cases. We examine whether your claim has prospects of success and assume the financing if that is the case. Representation in court is handled by an independent specialist lawyer for employment law. This allows you to enforce your rights without taking a financial risk.
The case with the 500 home office days shows: even if the employer hesitates or raises allegations, it is worth examining your claims. Nearly €16,000 is no small amount. Anyone who is ill has a right to continued pay – even when working from home. Do not let yourself be intimidated; seek legal assistance if the employer does not pay.
Note: This article is for general information purposes only and does not replace individual legal advice. For a free initial assessment of whether litigation funding may be an option for your case, you can contact RechtStark.