AGG Complaints Office: 6-Step Workflow

Main article: § 22 AGG reversal of the burden of proof — statistical indications, presumptive facts and how the employer rebuts the presumption.

Legal basis: what § 13 AGG regulates

§ 13(1) of the German General Equal Treatment Act (AGG) gives employees the right to complain to the competent bodies of the establishment, the company or the public authority if they consider themselves disadvantaged on one of the grounds listed in § 1 AGG; the complaint must be examined and the outcome communicated to the complainant. Subsection 2 leaves the rights of the employee representative bodies unaffected. In addition, § 12(5) AGG requires the Act and the information about the body competent for complaints to be made known within the establishment — without that publication the channel remains unused in practice.

§ 13 AGG is not to be confused with § 12 AGG: § 12(1) to (3) governs the employer's organisational and protective duties, § 13 the right to complain and the handling of the individual complaint. The workflow below combines both. It describes the German legal position; for Austria, see the separate section further down. The week and day figures in the headings of the six steps are throughout practice rhythms from case handling — the AGG contains no processing deadline for the complaints procedure.

1. Intake + acknowledgement (days 0-2)

Step 1 is the documented acceptance of the complaint, its initial classification and the feedback to the complainant. Acknowledgement of receipt within 2 days. Initial classification: characteristic under § 1 AGG. Assure confidentiality.

What to do: record the date of receipt, the channel of receipt and the wording of the complaint — including for an oral complaint, then as a file note. The initial classification assigns the facts presented to one of the grounds listed in § 1 AGG (race or ethnic origin, gender, religion or belief, disability, age, sexual identity) and to a form of disadvantage under § 3 AGG: direct disadvantage, indirect disadvantage, harassment or sexual harassment.

Why: § 13(1) AGG requires the complaint to be examined and the outcome communicated. In practice it has proved useful to document the handling from the moment of receipt and to treat the clarification of competence as the first processing step. The classification must not be misused as a pre-filter: § 7(1) and (2) AGG prohibits disadvantage even where the acting person merely assumes that a protected ground is present. A complaint therefore does not fail at this point because the characteristic is in fact not present in the complainant.

Practice: the 2 days are a practical value, not a statutory deadline. An assurance of confidentiality should reach only as far as it can be maintained in the further procedure — the limits are set out in the section on documentation and data protection.

2. Triage + investigation plan (week 1)

Step 2 determines the scope and direction of the investigation and secures the evidence before it is lost. Plausibility check. Secure evidence. Hearing plan: who, when, with whom.

What to do: secure correspondence, chat and email threads, calendar entries, selection and appraisal documentation as well as the circle of possible informants, and set out the investigation plan in writing — with the responsible person, the order of hearings and the escalation level. Where the complaint is directed against an algorithmically supported selection decision, the selection logs and the documentation of the human review form part of the records to be secured.

Why: the state of the evidence later determines the employer's position. Where the reversal of the burden of proof under § 22 AGG applies (see step 4), the employer must positively establish that no infringement occurred. The threshold for indicative facts is low: statistical anomalies in selection rates or documented bias findings may already count as an indication. Evidence that was not secured at the outset is missing in proceedings.

Practice: triage should also clarify whether the same set of facts is additionally to be treated as a report under whistleblower protection law — see the section on the HinSchG interface.

3. Hearings (weeks 2-4)

Step 3 clarifies the facts through hearings and produces the records on which the later assessment relies. Complainant + where applicable the accused person + witnesses. Minutes taken under the four-eyes principle.

What to do: conduct the hearings in the planned order, have every hearing accompanied by two people, and submit the record to the person heard for review and counter-signature. In the letter to witnesses, expressly name the protection against reprisals. Only what is necessary for clarification is collected — the principle of data minimisation under Art. 5(1)(c) GDPR also applies to hearing records.

Why: harassment within the meaning of § 3(3) and (4) AGG — the violation of dignity through a hostile environment as well as sexual harassment — is typically a situation of one person's word against another's; the quality of the records determines how robust the outcome is. The prohibition of victimisation in § 16(1) AGG expressly also covers supporting persons as well as witnesses; naming that protection in the letter increases the willingness to testify and at the same time documents the employer's own protective measure under § 12 AGG.

Practical recommendation: summary records with core statements quoted verbatim have proved superior to pure verbatim transcripts — they are available faster and are counter-signed more readily.

4. Assessment (weeks 5-6)

Step 4 assesses the state of the evidence against the standard of § 22 AGG and determines whether the complaint is substantiated. Examine the evidence. § 22 AGG: is an indication sufficient? What is the employer's evidentiary position? External advice in complex cases.

What to do: answer two questions separately. First: are the facts available sufficient as indications within the meaning of § 22 AGG? Second: can the employer, where the presumption applies, provide the counter-evidence — that is, positively establish that there was no infringement of the provisions protecting against disadvantage? The outcome is reasoned in writing, not merely stated.

Why: the allocation of the burden of proof under § 22 AGG is asymmetric: the threshold for indications is low, the counter-evidence to be provided is full proof. Anyone unable to reconstruct the selection or appraisal logic of a case cannot furnish that proof. That is precisely why the assessment is the point at which the quality of steps 2 and 3 pays off or backfires.

Practical recommendation: use three outcome categories rather than two — substantiated, not substantiated, not ascertainable. The third category is more honest than a forced decision and makes it possible to take protective measures without making a finding that the evidence does not support.

5. Measures + communication (weeks 7-8)

Step 5 translates the outcome into measures and discharges the duty to communicate under § 13(1) AGG. Recommendation on measures to HR/management. Measures may include: training, transfer, disciplinary proceedings, dismissal. Inform the complainant and the accused person of the outcome.

What to do: the recommendation on measures is submitted to the decision-making level in writing and with reasons. For the case of an infringement of the prohibition of disadvantage, § 12(3) AGG expressly names a warning, reassignment, transfer or dismissal as suitable measures; § 12(1) and (2) additionally requires necessary and preventive measures and makes clear that suitable training of employees counts as fulfilment of that duty.

Why: communicating the outcome is the second half of § 13(1) AGG; if it is omitted, the procedure is formally incomplete, even where action was taken internally. What is communicated is the outcome of the examination; for the specific personnel measure against an accused person, data minimisation under Art. 5(1)(c) GDPR applies alongside — here the interest in information must be weighed against the protection of personality rights.

Practical recommendation: communicate orally and in writing, with the date and the reasons for the outcome on file.

6. Lessons learned (week 8+)

Step 6 evaluates the closed case at organisational level and connects it to the employer's duty of prevention. Anonymised lessons-learned documentation. Update training material. Statistics for the internal annual report.

What to do: document the case in anonymised form, extend the training content to cover the constellation that became visible in the procedure, adjust the rules of procedure of the complaints office where gaps have shown, and check whether the publication under § 12(5) AGG is still current — for example after a change in the staffing of the competent body.

Why: under § 12(2) AGG, suitable training of employees counts as fulfilment of the duty of protection under § 12(1). A complaint case provides the concrete occasion to move that training to real constellations within the organisation instead of general examples. Anonymisation at the same time protects those involved, whose data in the procedure may fall within special categories under Art. 9(1) GDPR.

Practical recommendation: keep indicators such as case numbers, distribution of characteristics and processing duration for the internal annual report.

Documentation and data protection in the complaints procedure

A complaint file under § 13 AGG regularly contains data that Art. 9(1) GDPR makes subject to a general prohibition of processing (exceptions under subsection 2), and beyond that requires a legal basis under Art. 6(1) GDPR, supplemented in the employment context by § 26 of the German Federal Data Protection Act (BDSG). This concerns, among other things, information on racial and ethnic origin, on religious or philosophical beliefs, health data as well as data concerning sex life or sexual orientation.

Three consequences for file management follow from this. First, data minimisation under Art. 5(1)(c) GDPR: what is collected is what is necessary for clarification — hearing records are not character portraits. Second, access restriction: keep the complaint file separate from the personnel file and maintain a named, documented circle of persons authorised to access it. Third, the ability to respond: requests under Art. 15 to 22 GDPR must be answered without undue delay and in any case within one month of receipt; under Art. 12(3) GDPR the period may be extended by 2 further months, and the extension must be communicated with reasons within one month.

Practical recommendation: before the first case, determine who has access, where the file is kept and who answers data subject requests. These three determinations can no longer be made calmly once a procedure is under way.

Interface with the reporting office under whistleblower protection law

The complaints office under § 13 AGG and the reporting office under whistleblower protection law are two different institutions with different legal bases — they can be merged organisationally, but each then continues to follow its own rules. The obligation to set up a reporting office is tied in both countries to a threshold of 50 — in Germany to as a rule at least 50 employees, in Austria to 50 or more employees or public servants; the references are given in the table.

What matters in practice is the material scope: whether a specific allegation of discrimination is additionally to be treated as a report under whistleblower protection law depends on the respective national catalogue and must be examined case by case. The German catalogue in § 2(1) of the German Whistleblower Protection Act (HinSchG) covers criminal offences, infringements subject to a fine insofar as the provision breached serves to protect life, limb or health or the rights of employees or their representative bodies, as well as numerous listed legal provisions. The Austrian catalogue in § 3(3) of the Austrian Whistleblower Protection Act (HSchG) is narrower and essentially covers the listed EU areas plus the corruption offences under §§ 302 to 309 of the Austrian Criminal Code (StGB).

Practical recommendation: anyone merging the two offices should set the higher level of confidentiality under whistleblower protection law as the internal standard and make visible on the intake form which procedure the reporting person is choosing. As a matter of law it remains the case that § 8 HinSchG binds the reporting offices under the HinSchG, not the AGG complaints office.

Legal consequences and deadlines under German law

A complaint case that is not handled, or handled badly, takes effect through the claims under § 15 AGG and through the prohibition of victimisation in § 16 AGG. The bases of claim and their limits are shown in the table. As an order of magnitude, compensation for non-material damage is in practice put at one to three gross monthly salaries (§ 15(2) AGG); the amount depends on the individual case.

The prohibition of victimisation in § 16(1) AGG covers, in addition to the complainant, supporting persons as well as witnesses. For the complaints office this means: after the procedure has been concluded, transfers, withdrawal of duties or changes in appraisals affecting those involved require reasons.

The external point of contact in Germany is the Federal Anti-Discrimination Agency (Antidiskriminierungsstelle des Bundes), established at the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth: anyone who considers that they have been disadvantaged on one of the grounds listed in § 1 AGG may turn to it; it provides independent support, informs about claims, arranges advice and seeks an amicable settlement (§§ 25, 27 AGG).

Austria: GlBG, GAW and GBK instead of § 13 AGG

Austria (AT): the AGG applies only in Germany. In Austria, protection against discrimination is governed by the Austrian Equal Treatment Act (GlBG). The GlBG contains no statutory obligation to set up an internal complaints office such as that under § 13 AGG; those affected may turn to the Ombud for Equal Treatment (GAW) or initiate proceedings before the Equal Treatment Commission (Gleichbehandlungskommission, GBK). Internal complaints are nevertheless protected: under § 13 GlBG (Part I) and § 27 GlBG (Part II) respectively, no one may be dismissed without notice, given notice or otherwise disadvantaged in response to a complaint within the company or to proceedings to enforce the principle of equal treatment — this also applies to witnesses, informants and supporting persons. Claims are governed by § 12 GlBG (Part I) and § 26 GlBG (Part II), the deadlines by § 15 and § 29 GlBG — not by the two-month deadline of § 15(4) AGG. The 6-step workflow described above remains useful in Austria as a voluntary practice standard.

Two further differences shape case handling in Austria. First, the standard of proof: the person affected must establish the facts of discrimination on a prima facie basis; it is then for the defendant party to prove that, weighing all the circumstances, another motive was more probable or that a ground of justification exists. Second, the legal consequences: instead of a cap, the GlBG works with minimum amounts. Outside the company, too, the allocation of tasks is cut differently — the Ombud for Equal Treatment advises and supports, the Equal Treatment Commission conducts its own proceedings. References and amounts are shown in the table.