In its judgement of 22 May 2020, the Schleswig-Holstein Higher Labour Court ruled that in the event of complications arising after a tattoo, there is no entitlement to continued payment of remuneration for the period of the resulting incapacity to work(judgement of 22 May 2020, case no. 5 Sa 284 a/24).
Background
The plaintiff, who was employed as a care assistant, had a tattoo on her forearm. The tattooed area of skin became inflamed and the plaintiff fell ill for several days. The defendant employer then refused to continue to pay the plaintiff’s salary for the period during which she was unable to work.
The plaintiff argued that she was not claiming continued remuneration due to the tattoo procedure itself, but due to the subsequent inflammation, which constituted an independent health event. She was not at fault. She had only realised a low risk, which according to studies only occurs in 1 to 5 percent of cases. Furthermore, tattoos are recognised as an expression of private lifestyle and are widespread.
The defendant employer countered that the plaintiff had consciously consented to a dangerous bodily injury by agreeing to the tattoo. A resulting infection did not represent a general risk of illness, but a self-chosen risk that could not be borne by the employer.
As the plaintiff was unsuccessful at first instance before the Flensburg Labour Court, she appealed against the judgement.
The decision of the LAG
The LAG Schleswig-Holstein confirms the legal opinion of the Flensburg Labour Court:
Pursuant to Section 3 (1) sentence 1 of the Continued Remuneration Act (EFZG), an employee is entitled to continued remuneration for six weeks if he is unable to work due to illness through no fault of his own. However, the entitlement to continued payment of wages does not apply if the incapacity for work was the fault of the employee. The legislative objective of this provision is, on the one hand, to provide financial security for the employee and, on the other hand, to distribute the cost risks between the employer and the health insurance company. The incapacity for work is attributable to the employee’s fault if the employee significantly breaches the behaviour that a reasonable person would adopt in his or her own interests.
The decisive question in this case was therefore whether the inflammation of the skin leading to the incapacity for work was the fault of the employee. The LAG Schleswig-Holstein answered in the affirmative, stating that the plaintiff was at fault due to the fact that complications of this kind occur in up to 5% of cases of tattoos. The plaintiff was also aware of this. The complication was therefore not completely remote, which is why the plaintiff should have expected it. In its judgement, the court also took into account the plaintiff’s position as a nursing assistant, which is a physically demanding job with close patient contact. The risk of inflammation was therefore already increased by the nature of the work.
The decision is also in line with the assessment of Section 52 (2) SGB V, according to which insured persons who have contracted an illness as a result of a medically unindicated aesthetic operation, a tattoo or a piercing can receive an appropriate share of the costs of the services from the health insurance fund. Sickness benefit can also be refused in full or in part for the duration of this illness and reclaimed.
Conclusion
Beware of interventions without medical necessity! Employers can invoke the exclusion if employees jeopardise their health intentionally or through gross negligence. This becomes particularly relevant if medically unindicated interventions lead to complications that the employee was aware of or should have been aware of.