Schleswig-Holstein Regional Labour Court, judgement of 22.05.2025, Ref.: 5 Sa 284a/24
Facts of the Case
Tattoo inflammation leads to legal dispute. The plaintiff, employed by the defendant as a carer since 2023, had a tattoo on her forearm in December 2023. As a result, the area in question became inflamed and antibiotics had to be taken. The plaintiff subsequently submitted certificates of incapacity for work for a total of 4 days. However, the nursing service refused to continue to pay her full remuneration and reduced her salary for the month by a total of 465 euros. Reason: The illness was self-inflictedas tattoos are not medically necessary. Anyone who voluntarily undergoes such a procedure must bear the risk of complications themselves.
The plaintiff took a different view. She argued that the inflammation was a independent diseaseThe risk of infection is only 1 to 5 per cent and is therefore an uncommon secondary disease for which she is not to blame. In addition, tattoos are now commonplace in society and part of a person's private lifestyle.
The plaintiff then filed an action for payment of the unpaid 465 euros.
The decision: No entitlement to continued payment of remuneration in the event of illness. The plaintiff is at fault.
The LAG dismissed the claim and thus confirmed the previous judgement of the ArbG. The court found that the plaintiff should have expected the occurrence of an infection and that she was therefore at fault, which precluded a claim for continued remuneration.
Justification:
A claim of the plaintiff could in principle arise from §3 I S.1 EFZG. According to § 3 I 1 EFZG, the employer is entitled to continued payment of wages in the event of illness for the period of incapacity for work up to a period of six weeks if he is prevented from performing his work due to incapacity for work as a result of illness without being at fault. There was no question that the plaintiff was actually unfit for work in the present case.
What was problematic for the LAG was rather the question of whether they had a Fault applies. What is interesting here is the underlying §3 I S.1 EFZG Concept of fault, which does not follow from §276 BGB. This is because the consequences of an illness and / or the resulting inability to work affect the employee himself. Consequently, the question is whether a "Fault against oneself" is present. The case law of the BAG, which the LAG agrees with in the present case, has developed the following standard of culpability in this respect*. "Only the employee who acts culpably in the sense of the law on continued remuneration considerable extent violates the behaviour expected of a reasonable person in his or her own interest. In the opinion of the Chamber, the interest is exclusively the employee's own interest to be safeguarded, maintain his health and illnesses leading to incapacity for work. This is the sole point of reference for fault excluding claims within the meaning of §3 I 1 Hs. 2 EFZG.
Applying these guidelines, the chamber ruled that the plaintiff had culpably caused her incapacity for work. This assumption followed from the fact that she had deliberately caused the tattoo and should have expected the causal skin injury and subsequent incapacity to work. The court was not convinced by the plaintiff's argument that there was a low risk of infection. Rather, as a carer, the plaintiff had a physically demanding job with close patient contact, which is why an infection was all the more likely in this individual case. Overall, the plaintiff could not trust that "everything would be fine."
She therefore acted culpably within the meaning of the regulation.
Conclusion and practical tips:
This decision is in line with the case law of the Federal Labour Court and clarifies the following for employees:
- If an employee undergoes medical cosmetic surgery that leads to complications such as incapacity for work and the employee had to expect this, the employer has the option of refusing to continue to pay the employee's salary, citing that the incapacity for work was caused by the employee's own fault.
- Even supposedly "common" procedures such as tattoos still constitute a dangerous bodily injury and therefore cannot justify a claim for continued payment of remuneration if the procedure results in an inability to work simply because it is "socially recognised".
