No continued payment of remuneration in the event of illness after an infected tattoo

LAG Schleswig-Holstein 22.05.2025 - 5sa 284a/24

Tattoos are widespread, but also carry risks, such as a possible inflammation of the tattoo. The LAG Schleswig-Holstein now had to decide who bears the financial risk if something goes wrong when the tattoo is applied.

I. Facts of the case

In the underlying case, the parties were in dispute about continued payment of remuneration in the event of illness.

The plaintiff, a nursing assistant, had a tattoo on her forearm, which became infected. Due to the inflammation, the plaintiff called in sick. The defendant refused to continue to pay her wages for this period.

The plaintiff argued that the inflammation was a rare risk that only occurred in 1-5 percent of all cases. The inflammation was therefore not foreseeable and was her fault. Nowadays, tattoos are a normal part of private life.

The defendant, on the other hand, argued that anyone who gets a tattoo is knowingly consenting to bodily harm. Possible consequences, such as inflammation, were self-inflicted and therefore not to be paid for by the employer.

II. Decision of the LAG Schleswig-Holstein

The Regional Labor Court of Schleswig-Holstein ruled that although the plaintiff was unable to work due to illness, this inability to work was her own fault. According to Section 3 (1) sentence 1 EFZG, an employee acts culpably if he or she significantly violates reasonable behavior to protect his or her own health.

The plaintiff had to expect that the tattoo could lead to inflammation, as such complications occur in up to 5 percent of cases. This self-inflicted risk was not insignificant. In particular, the court drew the comparison that a corresponding risk is already considered "high" in the case of side effects of medication. This complication is accepted with approval of the tattoo. If this complication leads to incapacity to work, there is no entitlement to continued payment of remuneration in the event of illness, as the employee is at fault for the incapacity to work.

III. Practical advice

The ruling makes it clear that employers may refuse to continue to pay remuneration in the event of self-induced illnesses resulting from medically unnecessary interventions. It is therefore increasingly worthwhile for employers to critically examine the obligation to continue to pay remuneration.

Employees must be aware of the risks and may lose their entitlement to continued payment of wages in the event of self-inflicted illnesses.