29.06.2021 | KPMG Law Insights

Admissibility of tattoos in civil service law

Admissibility of tattoos in civil service law

For many people, tattoos are an expression of their personal experiences and personality. Often, the colorful motifs also decorate the body of its wearer only as a fashion accessory. A 2019 survey shows that every fifth person in Germany has a tattoo. Especially among young people between 20 and 29 years tattoos are becoming more and more popular. However, especially large tattoos, which are often reluctantly hidden as body jewelry, can be a hindrance in the job search, since many people and especially employers are critical of tattoos.

Thus, visible tattoos can also be a problem in civil service law. Against the background of the duty of neutrality and the representative function of civil servants, German courts have often had to deal with the question of whether and to what extent tattoos are permitted on civil servants. For example, it was not a hindrance to hiring a police officer that he had a large lion’s head with bared teeth tattooed on his chest. In another case, a police officer was banned from having the words “Aloha” tattooed on his forearm as a reminder of his honeymoon in Hawaii. Often, judicial decisions have been based on whether the tattoos are visible while wearing the summer uniform or disappear under the service uniform.

However, there is no general ban on tattoos for civil servants. In the Federal Government and in some of the Länder, the appearance of civil servants has hitherto been regulated by administrative regulations or circulars based on the authority to regulate official uniforms. For federal civil servants, such a tattoo ban was based on § 74 BBG. § Section 74 of the BBG provides that the Federal President or a body designated by him shall make regulations concerning the official dress customary or necessary in the performance of the office.

The Federal Constitutional Court objected in a decision that these circulars and administrative regulations do not constitute a sufficient enabling basis for a tattoo ban, since such a ban would infringe on the general right of personality of civil servants under Article 2 (2) of the Basic Law. 1 GG in conjunction with Art. 1 para. 1 GG is interfered with. Such a ban would also be an intrusion into the private lives of civil servants.

On the basis of this, the Bundestag adopted the new version of Section 61 para. 2 BBG and of § 34 para. 2 BeamtStG resolved. In terms of content, § 61 para. 2 BBG and § 34 para. 2 BeamtStG with identical wording. They regulate that the visible wearing of certain items of clothing, jewelry, symbols and tattoos may be restricted or prohibited by the highest service authority. Such restriction or prohibition is possible if it is required by the functioning of the administration or by the duty of respectful and trustworthy behavior. This is assumed to be the case in particular if the tattooing goes beyond the usual extent and the official function of the civil servant is thereby pushed into the background.

With the amendment, however, not only tattoos, piercings and other types of body jewelry can be banned in public service, but also features with religious and ideological connotations, such as the headscarf or the yarmulke. However, such a prohibition is only possible if these features or symbols are objectively capable of impairing confidence in the neutral conduct of official duties.

The new version of the regulations creates enabling legislation to regulate the appearance of civil servants. The new regulation also empowers the Federal Ministry of the Interior, for Building and the Homeland to regulate details of the external appearance by statutory order.

Furthermore, both in § 7 para. 1 No. 4 BBG as well as in Section 7 para. 1 No. 4 BeamtStG that a person may not be appointed as a civil servant if he or she has unchangeable features of appearance that are incompatible with the fulfillment of duties pursuant to Section 61 (1) of the Civil Service Act (BeamtStG). 2 BBG are not compatible.

The approval of the Bundesrat thus created a basis for authorization that enables the employer to prohibit tattoos and other body adornment and thus to regulate the external appearance of civil servants. How this will be implemented in practice remains to be seen.

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