Disrupted Employment Relationship due to Infringement of the Reintegration Obligations by the Employer

An employer had to pay a high severance payment to a long-term incapacitated employee because the employer had failed to seriously, and for a long time, take its obligation to offer suitable work to the employee.
For a long time, an employee had worked in a specialist position at a bank. He earned a high salary of over € 8,000 gross per month. The employee was part of a team with ten other specialists. When the employee was the one and only member of the team to be excluded for a bonus award, the employee reported sick in December 2019. The occupational physician decided that the employee was overworked as the result of an employment dispute.
Late February 2020, the occupational physician advised mediation and resumption of suitable work for two hours a day for two to three times a week.
In March 2020, a mediation process started that would take several months, without leading to solution of the labour dispute. Despite the recurring occupational physician’s advice to offer suitable work, almost a year passed by before the employee could start with his reintegration work. When, in the course of 2021, the employee's recovery and the accrual of hours subsequently proceeded well, the occupational physician advised assignment of the employee in another department, with an induction period and a training programme where relevant. In addition, according to the occupational physician, the bank should provide clarity about resumption of the employee’s own work.
The bank did not follow these advices either, which tempted the occupational physician in October 2021 to use the term “revolving door failure” in his advice. To say this, was to refer to a situation in which in each consultation the employee attended it appeared that the advice of the previous consultation still needed to be implemented. At the end of September 2021, the UWV imposed a wage sanction on the bank for insufficient reintegration efforts. Consequently, the bank had to continue to pay the wages to the sick employee until December 2022. In November 2021, the bank reported the employee recovered.
Over the succeeding months, the employee unsuccessfully applied for various positions within the bank.
Finally, in October 2022, the bank requested the Sub-district Court to dissolve the employment contract for a disrupted employment relationship. According to the bank, it had invested a lot of time and energy in the employee’s reintegration by having mediation meetings, by offering a reintegration place to which the employee had initially objected, by voluntary continuation of the wage payment after it had discontinued the wage payment first, and by searching suitable work for six months.
The employee blamed the bank that the employment relationship had been disrupted due to excluding him for the bonus, its failure to follow the occupational physician’s advice or to follow it too late, due to insufficient efforts to find suitable work and due to the undue discontinuation of the wage payment.
The employee could agree with dissolution of the employment contract, but he asked the Sub-district Court to grant him a fair compensation of approximately € 990,000 in addition to the transitional allowance of nearly € 110,000.
The Sub-district Court ruled first and foremost that the prohibition on termination during illness does not preclude submission of a request for dissolution. After all, the employee had been reported recovered by the bank.
The employee's defence that the bank had acted prematurely in order to avoid the wage sanction, was rejected by the Sub-district Court because there was no evidence that the request for dissolution had been related to the employee's labour incapacity.
As for the fair compensation, the Sub-district Court stated first and foremost that such a claim can only be granted if seriously culpable acts or omissions on the part of the employer can be proven and that this only applies in exceptional cases, for example when the employer grossly breaches the obligations under the employment contract and when this leads to a disruption of the employment relationship.
According to the Sub-district Court, it has been established that the bank failed to follow the occupational physician’s advice or followed them too late. The Sub-district Court rejected the bank's defence that it was the employee who should be blamed for the fact that it took almost a year before the reintegration work could commence: the employee had not been unreasonable when requiring a reintegration place that offered sustainable work.
What is more: the bank did not even start looking for a reintegration place until in the autumn of 2020, whereas the occupational physician had already given the advice by the end of February 2020. The bank had also failed to follow the occupational physician’s advice to look for suitable work in another department.
Furthermore, the UWV had imposed a wage sanction on the bank.
All of the above was culpable, but not necessarily seriously culpable.
The Sub-district Court, however, was of the opinion that the bank had nevertheless acted seriously culpably because the bank had failed to sufficiently substantiate that there would be no position for the employee, not even with an induction period or training program where relevant, whereas the employee had excellent financial insight. had the ability to come up with creative solutions, had consistently had good assessments and had been a valued employee within the team. They all signified unwillingness of the bank.
The Sub-district Court set the amount of the fair compensation at almost € 275,000 due to a significant reduction in the employee’s income over approximately two years. On the one hand, the Sub-district Court also took into account that it was justified to expect that the employee could remain employed by the bank until his retirement age because:
• the employee was 60 years old and had been employed for 25 years;
• a few years before he had been diagnosed with high-functioning autism, which makes it difficult to apply for a job;
• as a consequence of the actions of the bank his reintegration had taken a long time;
• he functioned well and was appreciated by his colleagues.
On the other hand, however, the Sub-district Court took into account that, later on, the employee should be able to earn a comparable high income, whether or not as a self-employed person, since:
• the employee had extensive experience in the banking world;
• the employee had a very good financial insight;
• the employee was solution-oriented.

It will be no surprise that the structural failure to follow the occupational physician’s advice in the way the bank did in the above case resulted in seriously culpable acts or omissions that require payment of a fair compensation. The judgment of the Sub-district Court indicates how the amount of the fair compensation should be calculated.
The damage caused by the loss of the employment contract is estimated.
What does surprise, however, is the fact that the Sub-district Court did not consider the prohibition on termination during illness applicable, especially when the employee's statement that the employer's notice of recovery was premature was correct.
Probably the Sub-district Court already had in mind that the best situation for both parties would be to separate.