Set up an AGG complaint office: Section 13 AGG, appointment certificate and procedural model

Section 13 paragraph 1 of the General Equal Treatment Act (AGG) of August 14, 2006 obliges every employer to set up a responsible body to which employees can turn if they feel discriminated against by the employer, superiors, other employees or third parties in connection with their employment relationship. The obligation applies from the first employee, has no threshold values ​​and does not depend on industry or legal form. The complaints must be examined and the result must be communicated to the person making the complaint. A violation of the supervisory and protective obligations can lead to claims for damages and compensation according to Section 15 AGG and to supervisory consequences according to Section 12 AGG.

In practice, the complaints office is not a formally appointed function in many medium-sized companies. Instead of a documented position, there is a generic HR contact, without an appointment certificate, without rules of procedure and without traceable documentation of the cases received. This gap regularly becomes visible in audits, in labour court proceedings or in the vendor due diligence process of a major customer. The article explains how the complaints office is set up in accordance with Section 13 AGG, provides templates for the appointment certificate and the rules of procedure, describes the process from receipt to completion of a complaint, differentiates it from the whistleblower reporting office according to the HinSchG and shows the CIVAC model for internal and external complaints offices. The addressees are managing directors, human resources managers, compliance functions and works councils who strive for a clean formal structure and want to close the documentation gap before the next audit or customer questionnaire.

§ 13 AGG is one of the most frequently underestimated obligations of the AGG. Paragraph 1 reads: Employees have the right to complain to the responsible authorities of the company, company or department if they feel disadvantaged by the employer, superiors, other employees or third parties in connection with their employment relationship for a reason stated in Section 1 AGG. The complaint must be examined and the result must be communicated to the person making the complaint. § 1 AGG names the protected characteristics: racial or ethnic origin, gender, religion or belief, disability, age, sexual identity.

The obligation is not linked to a minimum workforce. It arises from the first employee, including trainees, interns, temporary workers under the responsibility of the hirer and employee-like persons in accordance with Section 6 Paragraph 1 No. 3 AGG. The employer must set up the position, announce its existence (Section 12 Paragraph 5 AGG), ensure staffing and document the processing of complaints. Without an appointment document and rules of procedure, the position is not considered to have been established in the audit or in the labour court proceedings. A complaints office that only exists on paper does not comply with Section 13 AGG. The AGG complaints office at CIVAC will be set up with all formal components, including notification to the workforce and documentation of receipt of complaints. These formal components are not an end in themselves, but have a direct evidentiary function: In labour court proceedings according to Section 22 AGG, the burden of proof shifts to the employer's expense if the complaining person can present evidence of discrimination; A properly established complaints office is an essential component of providing counter-evidence.

The law does not prescribe the organisational form in which the complaints office is to be set up. Three models are common in practice. First: the personal union with the human resources department. An HR function also takes over the complaints office. This option is cost-effective, but regularly suffers from conflicts of interest if the complaint is directed against superiors or against HR decisions themselves. Second: the staff office. A separate function outside the line organisation is entrusted with the complaints office, often in connection with compliance, data protection or whistleblower protection. Third: the external complaints office. An external service provider or person is commissioned with the task.

The external solution is increasingly attractive for medium-sized employers. It resolves the conflict of interest, it protects the person complaining from the feeling of an internal cycle, and it relieves HR of the delicate dual role. The legal requirements are the same: appointment certificate, rules of procedure, notice, documentation, communication of the result to the complaining person, protection from reprimand according to Section 16 AGG. CIVAC operates the AGG complaints office either as a workspace licence for the internal function or as an external complaints office under Officer-as-a-Service with a named person. Licence the workspace for your internal complaints office, or have our complaints office appointed. In both cases, procedures, documentation and disclosure are maintained to the same standard and management receives the same quarterly reports. The transition between the models remains open: a company can start with an external complaints office and continue the function internally after a few quarters without having to rebuild the appointment certificate, rules of procedure or case documentation. For very small companies (less than ten employees), an external solution is often economically more attractive because the formal position functions equally, but the effort for training and documentation is outsourced to a service provider.

The appointment certificate from the AGG Complaints Office is the evidentiary document for the labour court, supervisory authorities and contractual partners. It states the legal basis (§ 13 AGG in conjunction with § 12 paragraph 5 AGG), the full name of the representative or the external service provider, the order date, the scope (companies, locations, employee groups), the tasks (acceptance of complaints, examination, communication of the result, protection against reprimand, reporting to the management), the reporting line to the highest management level, the confidentiality obligation, the period of validity and accessibility (postal address, email, telephone). The document is signed by the management and the appointed person, provided with a time stamp and stored in the workspace.

Common sources of errors in appointment certificates are: lack of confidentiality clause, generic task list without reference to Section 13 AGG, lack of reporting line, no obligation to notify the workforce, no accessibility outside the HR line, no information about the replacement arrangement in the event of vacation or illness. The CIVAC template takes these points into account and produces an appointment certificate that can be immediately stored in the workspace and published to the workforce. The appointment certificate, signed, filed, verifiable. The announcement is made in parallel via the usual channels in the company (intranet, notice board, email to the workforce, inclusion in the employment contract or the personnel handbook) and is also documented in the workspace so that proof of the announcement is available in accordance with Section 12 Paragraph 5 AGG. If there are changes in personnel in the complaints office or if the scope of application is adjusted (e.g. after an acquisition), the appointment certificate is reissued and the notice is sent out again so that the workforce always has up-to-date contact details. This obligation to update is often the point at which traditional file management fails: If you only issue the notice once during onboarding and do not update it later, you risk that complainants will use outdated contact details and their complaint will never be formally received.

The complaints office's rules of procedure are the operational basis. It regulates the receipt of a complaint (form, methods, anonymization options), the recording in the workspace with a time stamp, the classification according to the characteristics of § 1 AGG, the urgency test, the information of the complaining person about the further process, the examination of the facts (hearing, evidence, file situation), the consultation with management or the supervisory board in special case classes, the communication of the result to the complaining person, the documentation of the process and the closure of the case.

CIVAC structures the procedural rules as a binding process in the workspace. Every complaint goes through defined stages: receipt (day 0), confirmation to the person complaining (within 5 working days), hearing (within 15 working days), clarification of the facts (within 30 working days), notification of the result (within 45 working days). The deadlines are not legal requirements, but rather voluntary commitments by the complaints office that are published to the workforce. In the event of a dispute, a specific deadline that has been met is the most important evidence of a functioning position. Deadline begins as soon as we become aware of it. The duty of protection according to Section 16 AGG (prohibition of retaliation) is stated in the first initial notification so that the complaining person can take part in the proceedings without fear of disadvantages. Audit-proof, documented, Section 13-proof. The rules of procedure themselves are published on the internal platform so that the complainant can read the procedure before submitting a complaint. This transparency increases the likelihood that complaints will actually be made and risks will not remain in the informal space where they cannot be mitigated or documented. Management benefits more from an actively used complaints office than from a formally existing unused office because only active use provides early warning signals.

Each complaint case must be documented in its own, closed case file. Contents of the file: date of receipt, input channel, person complaining (with the right to choose anonymity in the internal report), facts of the case, alleged discrimination feature according to § 1 AGG, people involved, test steps carried out, statements obtained, result assessment, result communicated, follow-up measures, completion date. The file is maintained in the workspace with access restrictions; only the complaints office, management and, in the event of a dispute, the legal department have access. Personnel files and the HR system are deliberately kept separate so that no mixed files arise.

The retention period is based on the statute of limitations of the AGG (two month assertion period according to § 15 paragraph 4 AGG, three years civil law limitation according to § 195 BGB) and the data protection storage limitations according to Art. 5 paragraph 1 lit. e GDPR. A blanket retention period of more than ten years is not permitted. CIVAC maintains a differentiated retention matrix with defined deletion periods per case category, automatic deletion planning and an audit trail for each deletion. The appointment certificate, signed, filed, verifiable. If the supervisory authority requests the list of processing activities in accordance with Art. 30 GDPR, the processing of the AGG complaints with the legal basis, purpose, recipients, storage periods and technical measures can be exported. This differentiation protects the complaints office from the double risk of either keeping things too short or too long. If a labour court action is filed after the deadline for filing a claim has expired, the employer must still be able to provide evidence that the complaint has been processed; Premature deletion shifts the evidence to his disadvantage and can even lead to claims for damages. The data protection supervisory authorities have made it clear in several decisions that a differentiated storage limit with justification in the list of processing activities is an essential element of accountability according to Art. 5 Paragraph 2 GDPR.

With the Whistleblower Protection Act (HinSchG) of May 31, 2023, a second, similarly structured reporting office was created in German employers. Both positions can be organizationally bundled in the same function, but must be clearly delimited legally and procedurally. The AGG Complaints Office accepts complaints about discrimination in the employment relationship in accordance with the characteristics of Section 1 AGG. The HinSchG reporting office receives reports of violations of specified legal provisions in accordance with Section 2 of the HinSchG. Intersections arise, for example, in the case of sexual harassment in the workplace, which can be both an AGG complaint (§ 3 Paragraph 4 AGG) and a HinSchG notice (violation of § 12 Paragraph 3 AGG as a breach of duty of protection).

CIVAC manages both positions in the workspace, with two clearly separated procedures, two appointment certificates, two procedural regulations and two input channels, but under one organisational responsibility if the management decides so. Incoming reports are initially classified: AGG, HinSchG, both, neither. The process continues in the correct procedure with the correct deadlines, and the complainant is given an explanation of the protective rights that apply to her case right from the start. This clean cut is important because the confidentiality rules of the HinSchG (particularly Section 8 HinSchG) and the retention obligations vary and mixing them up in one file can lead to data protection violations. The access rights also differ: HinSchG reports are subject to stricter identity protection, which may also apply to management; AGG complaints are reported in aggregate to the management because the supervisory obligation according to Section 12 AGG requires knowledge of the structural findings. Anyone who combines both positions in one organisational function must therefore maintain two separate files, two separate reporting paths and two separate confidentiality regimes, which quickly leads to confusion without a structured platform.

§ 12 paragraph 5 AGG obliges the employer to announce the law and the responsible authorities in the company. This notice is the second central component alongside the appointment certificate. A complaints office without notice does not fulfil the obligation under Section 13 AGG because employees cannot reach the office if they do not know its existence. The announcement must be made in a form that is accessible to every employee: notice on the bulletin board, entry on the intranet, email to the workforce, inclusion in the personnel handbook, explanation in onboarding.

CIVAC provides a template for the announcement that includes the legal text of the AGG, the contact details of the complaints office, the protected characteristics according to § 1 AGG, the procedural steps and the prohibition of reprimands according to § 16 AGG. The template is stored in the workspace together with the appointment certificate and can be used directly for posting or electronic distribution. Proof of the announcement (date, form, distribution list, updates in the event of personnel changes) is documented in the workspace. In a labour court dispute about suspected discrimination, proof of proper notice is a central argument for management; Without this proof, the ease of proof in Section 22 AGG is more effective in favor of the complaining person. If the workforce is multilingual, the template also provides for a translation into the most important languages, because otherwise the announcement would not reach people with limited knowledge of German and would therefore fail to achieve its purpose. In labour court proceedings, a lack of linguistic accessibility is an independent indication of a lack of proper establishment of the complaints office, which shifts the burden of proof in accordance with Section 22 AGG in favor of the person making the complaint.

The complaints office reports to the management in two modes. First: an anonymized quarterly report with aggregated case numbers, case classes according to Section 1 AGG, average processing times, proportions of justified and unfounded complaints, follow-up measures taken and patterns observed. This report is the basis for the management's duty of supervision in accordance with Section 12 AGG and for early warning about structural risks (e.g. repeated complaints against the same superior or the same department). Secondly: an individual case report at certain thresholds, for example in the case of complaints against management members, in cases of suspected criminal relevance or in the case of repeated cases in the same area. These individual case reports follow a stricter confidentiality regime.

Anonymization in the quarterly report is not optional, but a prerequisite for the obligation to protect according to Section 16 AGG. Anyone who gives reports with identifiable persons to management without this identification being mandatory for the supervisory function violates the prohibition of retaliation and creates data protection risks in accordance with Article 5 GDPR. CIVAC implements anonymization as a systematic step in the workspace, with defined anonymization rules and double screening before sending. The auditor calls, the evidence is ready. If necessary, a complete report is prepared separately for the supervisory board or compliance office, with a clear recipient group and confidentiality level. The reporting structure is anchored in the appointment certificate so that it does not erode in day-to-day business. Deadline begins as soon as we become aware of it. Whoever receives the report as management is obliged to respond in a reasonable time; A lack of reaction to a justified finding can itself constitute a violation of the duty of supervision according to Section 12 AGG. The Supervisory Board is also involved in the reporting via Section 90 AktG as soon as structural risks are identified, because repeated findings of discrimination also pose a risk to reputation, employee loyalty and supplier relationships.

The AGG complaints office is one of the simplest and most often incompletely established obligations in German labour law. The consequences of a missing or incompletely documented position are not hypothetical: shifting the burden of proof according to Section 22 AGG in labour court proceedings, claims for compensation and damages according to Section 15 AGG, supervisory queries in the context of ESG reports according to the Corporate Sustainability Reporting Directive, supplier questionnaires from major customers with explicit questions about the AGG complaints office, audits by auditors and ESG rating agencies. The office is also a central element of the LkSG due diligence obligations because it receives complaints about human rights risks in its own business area.

CIVAC is a compliance platform and officer-as-a-service. Licence the workspace for your internal AGG complaints office, or have our complaints office appointed. Both methods provide the same standard: appointment certificate with all mandatory information according to Section 13 AGG, rules of procedure with defined deadlines, announcement to the workforce according to Section 12 Paragraph 5 AGG, audit-proof case documentation, anonymized quarterly reports, demarcation from the HinSchG reporting office, EU data residency, SLA of two working days for the setup. To get started, send an email to info@civac.de or use the contact form on civac.de. The intake is available on the first working day, the signed appointment certificate is in the workspace on the second working day, the announcement was made to the workforce in the same week and the process is active. Turn reading into an assignment. The appointment certificate, signed, filed, verifiable. The auditor calls, the evidence is ready. A properly established AGG complaints office is not only a legal obligation, but also an early warning system that makes structural risks visible before they end up in labour court proceedings or ESG findings. Anyone who sets up the position today will not only gain formal fulfilment of duties, but also the ability to operationally manage a risk that exists in every company, regardless of industry and size.