ArbG Aachen, judgment of February 21, 2019, Ref. 1 Ca 1909/18

The wearing of gel nails in the workplace can be prohibited by the employer with appropriate justification.

1. the employer’s right of direction also includes other measures that are directly related to the actual activity or the manner in which it is performed.

If the employer resorts to such other measures, it must observe the limits of reasonable discretion by weighing up the essential circumstances of the case and taking appropriate account of the interests of both parties.

2. another measure in the aforementioned sense may be, for example, a service instruction on the design of fingernails for helpers in social services during working hours.

(In the specific case, the effectiveness of a ban on painted fingernails and gel nails, among other things, was affirmed due to the overriding interests of the employer as the operator of a retirement home in protecting the health of the residents)

Tenor

1. the action is dismissed.

2. orders the plaintiff to pay the costs.

3 The value of the subject matter of the dispute is set at EUR 3,000.00.

4 The appeal is not admitted separately.

Facts of the case

The parties are in dispute about the effectiveness of an employer’s instruction.

The plaintiff has been employed by the defendant, which runs a retirement home, as a social service assistant since August 1, 2009. The basis is the employment contract dated July 2, 2009 together with addenda dated September 25, 2009 and July 5, 2010, the details of which are set out in sheets 4 – 6, 8 – 12 of the file. 4 – 6, 8 – 12 of the file.

The social service assistants are in direct contact with the residents of the retirement home and take care of their entertainment and activities. Among other things, they bake cakes together once a week for a residential area, occasionally barbecue, which includes preparing salads, or distribute ice cream.

On February 19, 2018, a service instruction dated January 31, 2018 was posted on the generally accessible information board, where the duty rosters are also posted. With this, \”after extensive information gathering (…) the service instruction on the subject of \”fingernails in care and housekeeping\” was extended with immediate effect to the employees of the social service and the employees of the care service (…)\”. These instructions on the subject of fingernails stipulate that, for reasons of hygiene, the wearing of long fingernails, painted fingernails, artificial fingernails and gel nails is prohibited during working hours. The extension of the directive was initiated by the employee representatives.

In any case, the plaintiff had been wearing gel nails since 2017. In a letter dated March 21, 2018, she was admonished for not removing them. She is now complying with the instruction. However, she is challenging the validity of this instruction in her complaint.

The plaintiff is of the opinion that the instruction is already objectionable from a formal point of view, as the referenced service instruction on the subject of fingernails was not posted or transmitted at the same time. She claims that she was the only employee who was not directly informed by the defendant. In addition, the plaintiff is of the opinion that the instruction is also ineffective under substantive law, as it does not correspond to equitable discretion. This is because the instruction has a significant impact on her private life, as it also affects her personal appearance during her free time. The temporary putting on and taking off of gel nails is practically unfeasible. The defendant thereby significantly interferes with her general right of personality. In contrast, it is not apparent in which specific activities the design of the fingernails could impair the care of the residents. In her opinion, the hygiene cited by the defendant could be maintained by wearing special gloves or finger covers, for example, which would affect her less in her free time. The recommendations of the Federal Health Gazette and the Robert Koch Institute cited by the defendant refer only to medical and nursing staff, to which she does not belong. The plaintiff also claims that she is only very sporadically entrusted with activities in the area of food preparation, which are otherwise mainly the responsibility of kitchen staff. In the past, she claims to have been assigned on average once a month, for example to bake cakes on Saturdays or to prepare dinner. Apart from that, she would avoid contact with food.

The applicant claims that the Court should,

that it is not obliged to follow the service instruction on the subject of “Fingernails in care and housekeeping”.

The defendant claims,

dismiss the action.

She is of the opinion that there are no formal requirements for the instruction to be effective. In terms of content, she also effectively exercised her employer’s right to issue instructions and exercised reasonable discretion after weighing up the interests involved. The prohibition on wearing fingernails other than short-cut and natural fingernails is mandatory for reasons of hygiene if the employee is working in the context of caring for residents or preparing meals. When caring for residents, there is always contact with food. For example, it is always necessary to open a yoghurt pot or a bag of potato chips, peel and serve fruit, open and pour drinks, etc. Every exception poses a risk of health problems for the residents. The defendant refers in particular to the information in the Federal Health Gazette and the recommendations of the Robert Koch Institute, the details of which are set out in pp. 27, 28 of the file are referred to. The information there relates to care facilities and healthcare facilities as a whole, including the retirement home operated by the defendant. Accordingly, wearing gloves is also not a suitable alternative. The defendant also refers to excerpts from the expert report \”Aktion Saubere Hände\” from 2013, the details of which can be found on pp. 77 – 94 of the file are referred to. The defendant claims that after consultation with both the internal and external hygiene officer, both confirmed the necessity of extending the service instruction on the subject of fingernails. Likewise, inquiries at comparable facilities in the vicinity had revealed that all employees there were also prohibited from wearing artificial fingernails and gel nails etc. Ultimately, in order to protect the health of the residents by ensuring compliance with the hygiene regulations imposed on it, it sees no other option than the application of and compliance with the service instruction for and by all employees.

For further details, reference is made to the mutually exchanged written submissions of the parties, including annexes, as well as the minutes of the oral hearings.

Reasons

The admissible action is unfounded.

I.

The plaintiff is obliged to comply with the service instruction on the subject of “Fingernails in care and housekeeping” and therefore to refrain from wearing long fingernails, painted fingernails, artificial fingernails and gel nails for reasons of hygiene. The underlying service instruction issued by the defendant on January 31, 2018, with which this service instruction was also extended to the plaintiff as an employee in social services, is lawful, §§ 106 sentence 2, 2 GewO, § 315 para. 3 BGB.

Pursuant to Section 106 sentence 2 GewO, the employer may determine the content, place and time of work performance vis-à-vis employees at its reasonable discretion, insofar as these working conditions are not stipulated by the employment contract, provisions of a works agreement, an applicable collective agreement or statutory provisions. The defendant permissibly exercised this right of direction on the part of the employer in the service instruction of January 31, 2018.

2.. Formelle Unwirksamkeitsgründe liegen nicht vor. Es gibt keine vertraglichenoder gesetzlichen Regelungen dazu, wie die Beklagte als Arbeitgeberin das ihr grundsätzlich zustehende Direktionsrecht auszuüben hätte. Notwendig ist lediglich, dass die Klägerin als betroffene Arbeitnehmerin von der Dienstanweisung Kenntnis erlangt. Unstreitig weiß die Klägerin, dass die Beklagte neue Verhaltensregeln in Bezug auf Fingernägel aufgestellt hat.

2. the instruction as to how the plaintiff is to design and wear her fingernails can also in principle be the subject of the employer’s right to issue instructions pursuant to § 106 GewO.

On the one hand, the right to issue instructions concerns the specification of the main performance obligation. The employer’s right to issue instructions also includes the \”performance of the promised services\” within the meaning of Section 611 para. 2 BGB, is any other activity or measure requested by the employer in the synallagma that is directly related to the actual activity or the manner in which it is performed. For example, the prior donning of work clothes prescribed by the employer or refraining from wearing certain private items of clothing can be considered such an activity (BAG, judgment of November 2, 2016 – 10 AZR 596/15 – para. 24, 25, juris). The instruction at issue in the present case to only work with natural and short-cut fingernails is also related to the performance of the work and concerns the appearance that the plaintiff must maintain as an employee in the performance of her work.

The right to issue instructions is also not restricted by employment contract, company, collective agreement or statutory regulations. Such regulations do not exist with regard to the design of fingernails when performing work.

3. the defendant exercised its right to issue instructions in the present case in a legally effective manner. In particular, it has complied with the limits of reasonable discretion, Section 106 sentence 2 GewO, Section 315 para. 3 BGB.

aa. The determination of performance according to equitable discretion requires a weighing of the mutual interests according to constitutional and statutory value decisions, the general valuation principles of proportionality and appropriateness as well as customary practice and reasonableness. All circumstances of the individual case must be included in the consideration. The holder of the right of determination pursuant to Section 106 GewO, Section 315 para. 2 of the German Civil Code (BGB) is left with a margin of discretion to be exercised according to equitable discretion. Within this leeway, the party entitled to make the determination may have several decision-making options. Pursuant to Section 106 GewO, Section 315 para. 3 sentence 2 BGB, the court is responsible for examining whether the employer, as the creditor, has observed the limits of its right of determination. This examination is not based on the considerations made by the party entitled to make the decision, but on whether the result of the decision made meets the legal requirements. The burden of presentation and proof for compliance with these limits lies with the person with the right of determination. The relevant point in time for the exercise control is the point in time at which the employer had to make the discretionary decision (BAG, judgment of October 18, 2017 – 10 AZR 330/16 – para. 45, juris).

A determination of benefits corresponds to equitable discretion if the essential circumstances of the case have been weighed up and the interests of both parties have been appropriately taken into account (BAG, judgment of April 9, 2014 – 10 AZR 637/13 – para. 26, juris).

bb. Accordingly, the service instruction prohibiting the wearing of long fingernails, painted fingernails, artificial fingernails and gel nails on duty corresponds to equitable discretion. The defendant has thus preserved the scope to which it is entitled when weighing up the mutual interests of the parties to ensure that its interests prevail.

(2.). Zugunsten der Klägerin ist zu berücksichtigen, dass die nunmehr geltende Dienstanweisung ihr grundrechtlich gewährleistetes und geschütztes Recht auf freie Entfaltung der Persönlichkeit gemäß Art. 2 Abs. 2. GG einschränkt. Dieses allgemeine Persönlichkeitsrecht umfasst auch das Recht, über die Gestaltung der äußeren Erscheinung auch im Dienst eigenverantwortlich zu bestimmen (vgl. etwa BVerfG, Kammerbeschluss vom 10. Januar 1991 – 2 BvR 550/90 – juris, dort anlässlich des Verbots des Tragens von Ohrschmuck). Die Grundrechte gelten auch innerhalb des Arbeitsverhältnisses und sind seitens der Beklagten als Arbeitgeberin grundsätzlich zu beachten. Das nunmehr ausgesprochene Verbot, künstliche, lackierte, gegelte und lange Fingernägel zu tragen, schränkt dieses Recht der Klägerin ein. Sie kann nicht mehr selbst entscheiden, wie sie ihre Fingernägel als Teil ihres äußeren Erscheinungsbildes gestalten möchte. Da das Auftragen der von der Klägerin zuvor getragenen Gelnägel mit einem besonderen Zeit- und auch Kostenaufwand verbunden ist, wirkt sich die nunmehrige Dienstanweisung der Beklagten zugleich auch auf das Privatleben der Klägerin aus. Sie hat nicht ohne weiteres die Möglichkeit, die Gelnägel lediglich für die Zeiten des Dienstes abzulegen und in der Freizeit ohne größeren Aufwand wieder zu tragen.

(2). Demgegenüber hat die Beklagte ein besonderes Interesse daran, die Gesundheit und das körperliche Wohlbefinden der ihr anvertrauten Bewohnerinnen und Bewohner bestmöglich zu schützen. Auch dieses Recht auf körperliche Unversehrtheit ist in Art. 2 Abs. 2 S. 2. GG grundrechtlich besonders geschützt. Die von der Beklagten angeführten Hygienevorschriften und -standards sollen dieses Recht gewährleisten und verhindern, dass die Bewohnerinnen und Bewohner erkennbaren und vermeidbaren Gesundheitsgefahren ausgesetzt werden. Der Beklagten obliegt gegenüber den Bewohnerinnen und Bewohnern, die sie in Obhut genommen hat, eine besondere Fürsorgepflicht. Sie hat als Betreiberin des Altenheims dafür Sorge zu tragen, dass von ihrer Einrichtung, den dortigen Zuständen und insbesondere auch von den dort tätigen Mitarbeiterinnen und Mitarbeitern keine Gesundheitsgefahren für die Bewohnerinnen und Bewohner ausgehen.

(3). Bei der Abwägung dieser widerstreitenden Interessen durfte die Beklagte nach Auffassung der Kammer die Angaben und Empfehlungen im Gesundheitsblatt, wiederholt auch vom Robert Koch Institut, zugrunde legen. Diese Empfehlungen beruhen auf einem besonderen diesbezüglichen Fachwissen und sollen gerade die auch hier maßgebliche Fragen beantworten, ob von langen, künstlichen und gegelten Fingernägeln Gesundheitsgefahren ausgehen und wie diesen am effektivsten begegnet werden kann.

The Federal Health Gazette (p. 28 of the file) states in part:

\”The requirements for effective hand disinfection have only been partially investigated and are mainly derived from the hygienic risk assessment.

Clinics, surgeries, care facilities and other medical work areas must be entered with visibly clean hands and fingernails. (…) Short-cut fingernails that are flush with the fingertips ensure cleaning of the subungutal spatia and minimize the risk of glove perforation at the fingertips. Nail polish should be rejected because it impedes visual assessment of the nails and colonization on the nails increases with increasing wear time. Although the influence of fresh nail polish was not detectable, the recommendation not to wear nail polish in healthcare settings is justified because the age of the nail polish and its quality (microcracks, etc.) cannot be assessed in practice. The bacterial density on artificial nails is higher than on natural nails. At the same time, artificial nails impair the success of hand hygiene and increase the risk of perforation of disposable gloves. Artificial nails have repeatedly been identified as a source of NI (nosocomial infections) in immunocompromised patients and for outbreaks of postoperative wound infections. (…)\”

The recommendations of the Robert Koch Institute (p. 27 of the file) also cite these recommendations of the Commission for Hospital Hygiene and Infection Prevention. It goes on to say:

\”Chapter 11 of the (KRINKO) recommendation continues: \”Nail polish is not permitted (…). The wearing of artificial and gelled fingernails is not permitted (…).\”

The statements and recommendations listed here are clear and unambiguous. From a hygiene point of view, it is clearly recommended that only natural and short-cut fingernails should be worn. On the one hand, this is justified by the fact that this enables better visual control of any contamination and minimizes the risk of damage to disposable gloves. On the other hand, an increased density of bacteria on artificial nails is pointed out, as is the possibility of material fatigue of the nail polish over time.

(4). Vor dem Hintergrund dieser Empfehlungen hält sich auch die von der Beklagten nunmehr ausgesprochene Dienstanweisung, dass auch Helferinnen und Helfer im Sozialen Dienst grundsätzlich keine künstlichen Fingernägel, lackierten Fingernägel, langen Fingernägel und Gelnägel während des Dienstes tragen dürfen, innerhalb des ihr zustehenden Spielraums.

First of all, the information and considerations in the Health Gazette and at the Robert Koch Institute apply regardless of whether the retirement home operated by the defendant falls under the aforementioned healthcare facilities or care facilities. It is equally irrelevant whether the plaintiff is a member of the nursing or medical staff in this sense. The issues raised ultimately apply to any contact between people.

In the opinion of the Chamber, they are particularly relevant for the retirement home operated by the defendant. In the case to be assessed here, against this background, the equally justified interests of the plaintiff in the free development of her personality and the free design of her external appearance must take second place to the justified interests of the defendant in the best possible health protection of the residents entrusted to her care. Even if the plaintiff’s work does not mainly consist of preparing meals, she rarely comes into contact with the residents’ food and she is not responsible for their physical care, she still works closely with the residents to entertain and occupy them. In this respect, the defendant cannot safely exclude the possibility that the plaintiff comes into contact with food or direct physical contact with the residents. Moreover, this would not correspond to the purpose of the work as a social service assistant. In this situation, the defendant – as already stated – has a legitimate interest in protecting the residents as well as possible from health hazards that may also emanate from the plaintiff and the other employees in the social service.

In the opinion of the Chamber, the defendant was entitled to come to the conclusion that only the recommendation made in the health bulletin and by the Robert Koch Institute to wear only natural and short-cut nails offers sufficient protection. While a possible infection of a resident, which could be caused by artificial or long fingernails, can pose a very considerable health risk, especially for older and possibly weakened persons, on the other hand, the interference with the general personal rights of the plaintiff, which only concerns the design of the fingernails as a small part of her external appearance, is to be regarded as minor.

In this consideration and also taking into account the clear recommendations of the experts, the defendant did not have to limit itself to an instruction to wear certain gloves. Likewise, in the opinion of the Chamber, it is irrelevant how much the plaintiff herself has recently come into contact with food. As already stated, the fundamental considerations that she is in constant close contact with the residents also apply to her. Furthermore, in the opinion of the Chamber, it is reasonable and also within the bounds of reasonable discretion to extend the service instruction and conduct with regard to the design of fingernails uniformly to all employees, in particular to all social service assistants.

II.

The decision on costs follows from section 46 para. 2 p. 2. ArbGG, §§ 495, 91 para. 2. SENTENCE 2. ZPO. The plaintiff must bear the costs of the legal dispute, as she was unsuccessful.

The amount in dispute to be stated in the judgment pursuant to § 61 para. 2 ArbGG was set by the Chamber at EUR 3,000.00. This is based on § 46 para. 2 p. 2. ArbGG, §§ 495, 3 ZPO.

Reasons within the meaning of § 64 Para. 3 ArbGG for the separate admission of the appeal are not apparent in the present case.

INFORMATION ON LEGAL REMEDIES

The plaintiff may appeal against this judgment. The defendant has no right of appeal against this judgment.

The appeal must be submitted in writing or in electronic form within an emergency period* of one month to the

Regional Labor Court Cologne

Blumenthalstrasse 33

50670 Cologne

Fax: 0221 7740-356

have been received.

The electronic form is ensured by an electronic document. The electronic document must be suitable for processing by the court and bear a qualified electronic signature of the person responsible or be signed by the person responsible and submitted via a secure transmission channel pursuant to Section 46c ArbGG in accordance with the Regulation on the Technical Framework Conditions for Electronic Legal Transactions and on the Special Electronic Public Authorities Mailbox (ERVV) of November 24, 2017, as amended. Further information on electronic legal transactions can be found on the website www.justiz.de.

The emergency period begins with the service of the judgment in full form, at the latest five months after its delivery.

The notice of appeal must be signed by an authorized representative. Only authorized representatives are permitted:

1. lawyers,

2. trade unions and employers’ associations as well as associations of such organizations for their members or for other organizations or associations with a comparable orientation and their members,

3. legal entities whose shares are all beneficially owned by one of the organizations referred to in number 2, if the legal entity exclusively provides legal advice and legal representation to this organization and its members or other associations or groupings with a comparable orientation and their members in accordance with their statutes, and if the organization is liable for the activities of the authorized representatives.

A party who is admitted as an authorized representative may represent himself.

* An emergency deadline is irrevocable and cannot be extended.

Contact person

Free newsletter

Matching contributions

Cannabis use in the workplace

Cannabis use has been legal with restrictions since April 1, 2024.
What consequences and problems does this have for employers?

Search

Request