On 6 December 2017 the Federal Labor Court (docket number 5 AZR 815/16) decided an employee has to offer his job performance in accordance with the contract of employment, in order to claim remuneration for default of acceptance. It is not sufficient to offer an activity within a reintegration relationship according to sec. 74 Social Security Statute Book V (Sozialgesetzbuch V, SGB V), since the reintegration relationship is a contractual relationship sui generis, which is not part of the employment relationship. In contrast to the employment relationship, the reintegration relationship is not characterized by an exchange of performance and consideration, but by the purpose of rehabilitation.

The plaintiff is employed as teacher by the defendant federal state. From March 2007 he was incapacitated for work because of sickness. During the period of February 2008 until May 2009 a medical specialist treated him. She recommended a gradual reintegration into working life for three hours a day from 26 June 2009 until 3 July 2009. In the reintegration plan the medical specialist indicated that he would be fit to return to work by the end of the summer holidays. However, the defendant federal state did not implement the reintegration.

By letter dated 25 August 2009, the plaintiff’s representative stated that the incapacity for work would end on 31 August, a “solution about the employment” is necessary and that reintegration should take place. The defendant federal state refused to allow the plaintiff to return to work until his working capacity could be reviewed by a medical officer. In October 2009 the plaintiff’s representative submitted a medical certificate, which certified working capacity for normal basic school conditions. Furthermore the representative stated that from now on there was an obligation to employ and to remunerate the plaintiff. Subsequently the plaintiff demanded remuneration due to default of acceptance.

The Federal Labour Court decided that the plaintiff did not offer his job performance by the letter in October. Interpretation of the letter in October, under consideration of the previous correspondence, concluded that the plaintiff had only offered an activity relating to a reintegration relationship. An offer to work in a reintegration relationship does not comply with the job performance which is owed. Since the activity in a reintegration relationship is aimed at recovering working capacity, it does not just aim to satisfy the job performance owed. Therefore an employee does not render his owed job performance during reintegration relationship. Thus, during the reintegration relationship both parties are respectively exempted from major obligations.

Consequently, the plaintiff does not have a claim relating to remuneration due to default of acceptance, in the absence of offering his job performance.

This decision demonstrates the legal nature of the reintegration relationship and the consequences when claiming it.

A claim relating to remuneration for default of acceptance requires the employee to offer his job performance in an unambiguous way. The demand of reintegration does not amount to such an offer.

The refusal of the employer to agree to a reintegration relationship justifies a claim for compensation only if the employee is severely disabled or equal in law to a severely disabled person.