Meeting of a preclusive period when claiming continued payment of remuneration by the employee’s health insurance

In its decision of November 15, 2019 (Ref.: 9 Sa 99/18), the Regional Labour Court of Baden-Württemberg dealt, among other things, with the question of whether and under what conditions the health insurance fund of an employee can assert claims for continued remuneration against his employer within the specified period.

Between the end of 2016 and mid-2017, the employee was sick several times without being able to work. In his first-instance lawsuit filed with the Labour Court of Freiburg, he claimed, among other things, continued remuneration from his employer for a period of six weeks from April 20, 2017. The Labour Court of Freiburg dismissed the complaint as unfounded. The appeal brought against this decision before the Regional Labour Court of Baden-Württemberg was unsuccessful. According to the court, the plaintiff had not effectively asserted his claim for continued remuneration within the agreed preclusive period.

Among other things, the collective bargaining agreement for employees of Deutsche Post AG, which contains a preclusive period provision in Section 38 (1), applied to the employment relationship. Accordingly, claims arising from the employment relationship shall be forfeited by both parties if they are not asserted in writing within a preclusive period of six months after the due date.

At no time did the employee himself assert the claim to continued payment of remuneration in dispute against his employer. Only the plaintiff’s health insurance fund had addressed a letter to the employer on July 18, 2017, in which it asked the employer to continue to pay remuneration for six weeks. In the view of the court, this letter was not sufficient for an effective assertion of the plaintiff’s claim for continued remuneration. The employee does not necessarily have to assert the claim himself. However, it was not apparent from the letter from the health insurance fund that it had acted on behalf or in the name of the applicant. The request for payment of the remuneration for six weeks is not in itself sufficient to allow the claim to be accepted on behalf of the applicant. Rather, this was merely a legal opinion of the health insurance fund. In addition, such letters from a health insurance fund are regularly written against the background that otherwise the health insurance fund has to provide a “non-discriminatory service” by granting sickness benefit in the event of non-payment of continued remuneration owed. The letter therefore primarily serves the health insurance fund’s own interests, so that the employer does not have to expect that the health insurance fund will assert a claim by the employee.

On this basis, third parties can generally assert the employee’s rights within the stipulated period. However, the condition is that the statement must show that the third party is acting in the name of or on behalf of the employee as rights holder.

Patrick Goertz                         Dr. Lorenz Mitterer
Lawyer                                Lawyer / Partner
Related Posts