Teacher dismissed because of tattoos

What was once considered body jewelry for sailors or criminals has long since arrived in the middle of society - tattoos. From small stars as an accessory to large, all-over tattoos, it is fashionable to decorate your skin with color. However, caution is advised: Anyone with a „fake“ tattoo may face dismissal from their employer, at least if they are employed in the public sector.

The LAG Berlin-Brandenburg has now ruled in its judgment of May 11, 2021 - 8 Sa 1655/20 (here to read) ruled that the presence of a tattoo alone could justify termination without notice.

The Regional Labor Court had to deal with a complex topic. We would like to document the most important information from the ruling for you in this article.

Teachers have a special duty of loyalty to the constitution

Because teachers are supposed to teach pupils the basic values of the Basic Law, in particular freedom, democracy and the rule of law, they are required to be particularly loyal to the constitution. On the one hand, this is intended to prevent pupils from being educated in an anti-constitutional manner and, on the other, to promote commitment to freedom, democracy and the rule of law.

A breach of this duty of loyalty is deemed to have occurred if symbols are displayed that are classified as anti-constitutional. According to the new decision, the wearing of tattoos depicting anti-constitutional symbols should also justify termination without notice. The open display in class would not be relevant.

Teacher wears ambiguous tattoos

A teacher in Brandenburg has now been dismissed because of tattoos on his upper body, which are not usually visible in class.

In detail, the tattoos are a Thor's hammer (Mjöllnir) with a wolf's scepter or a Gibor rune, a sun wheel, a so-called „black sun“ and an upside-down butterfly axe. In the belly area there is also the saying „My honor is loyalty“, whereby the word loyalty is signed again with the words „Dear family“. At a later date, the teacher had the word „heißt“ tattooed over with a cross.

Although the symbols are also used in Nordic-Germanic mythology, in the opinion of the Office for the Protection of the Constitution, the slogan „My honor means loyalty“ rules out the possibility that the tattoos have a religious Nordic-Germanic background. This slogan is a former motto of the SS and suggests an established right-wing extremist attitude. The later change by deleting the word „heißt“ is irrelevant.

During a school sports festival, the teacher temporarily took off his T-shirt due to a heatwave, so that the tattoos became visible.

Teacher distances himself from right-wing ideas

On the other hand, the teacher in question had always distanced himself from right-wing or even right-wing extremist ideas. He had never been active in such circles and was not involved in such political organizations or parties.

According to the dismissed teacher, the tattoos had an exclusively religious background. These had been created in particular as an act of rebellion against his very religiously influenced parental home. Despite the distancing measures, the state terminated the employment relationship with the teacher without notice, or in the alternative with due notice.

The presence of the tattoos constitutes a significant breach of duty

The teacher concerned filed an action for unfair dismissal against this dismissal. He was successful before the Neuruppin Labor Court. As parallel criminal proceedings had not yet been concluded and the lack of suitability had not been established beyond doubt, the dismissal was invalid.

However, the Brandenburg Higher Labor Court overturned this decision with the present ruling. The presence of tattoos alone constituted a significant breach of duty that could justify termination without notice. The display of the tattoos is irrelevant in this case. It was also irrelevant whether or not a criminal offense was committed by displaying the symbols.

As a teacher, he is obliged to stand up for the free and democratic basic order. This cannot be reconciled with the tattoos in question, as they must give the impression that the wearer rejects the free democratic basic order or protests against it.

Res judicata before higher courts uncertain

Whether this decision will ultimately be upheld cannot be said with certainty. In particular, the principle of the so-called „function-related duty of loyalty“ in combination with the fact that the teacher taught natural sciences and not social studies, for example, could cast doubt on the validity of the decision before the Federal Labor Court.

For example, in a ruling on January 19, 1989, the Federal Administrative Court declared the removal of a teacher who was actively involved in the DKP (German Communist Party) and published essays with anti-constitutional content to be unlawful. Even a lecturer who is at an inner distance from the free democratic basic order does not necessarily have to be incapable of teaching in accordance with the academic requirements of the subject (see BVerwG ruling of January 19, 1989, case no. 7 C 89.87).

The BAG ruled against a trainee teacher that the exercise of membership rights and official activities in the anti-constitutional organizations of the DKP and the MSB Spartakusbund are not suitable to give rise to serious doubts as to whether trainee teachers who are not civil servants comply with their lesser duty of loyalty to the constitution (BAG in the ruling of 01.10.1986, Ref. 7 AZR 383/85).

A decision by the European Court of Human Rights also reinforces these doubts. There, the judges found that the removal of a teacher from her position due to her constant active involvement in the DKP and her commitment to an anti-constitutional party program constituted a violation of human rights (ECtHR judgment of 26.09.1993, Az 7/1994/454/535).

Conclusion

If you work in the public sector, you should think carefully about getting a tattoo. Above all, the motif should be well thought out and you should inform yourself in advance about symbols that are not sufficiently well-known. Tattoos with an ambiguous meaning should always be avoided.

If you have been dismissed because of a tattoo, you should definitely consult an experienced employment law lawyer. An action for unfair dismissal may well lead to success, particularly due to the conflicting decisions of the Federal Administrative Court, the Federal Labor Court and the ECHR.