AGG Complaints Office: Confidentiality and Protection (§ 13 AGG)

The General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz - AGG) obligates employers in Germany to take organizational precautions against discrimination in the workplace. Pursuant to § 13 Abs. 1 AGG, all employees have the right to lodge a complaint with the competent department of the establishment, company, or office if they feel disadvantaged in connection with their employment relationship for one of the reasons specified in § 1 AGG. These protected characteristics include racialized attributions, ethnic origin, gender, religion or belief, disability, age, and sexual identity. The law thus grants an individual protection claim, which companies must organizationally underpin by establishing an operational anti-discrimination complaints office (Beschwerdestelle).

In contrast to other legal requirements in the compliance sector, the obligation to set up an AGG complaints office applies without restriction from the very first employee. The expertise of the Federal Anti-Discrimination Agency (Antidiskriminierungsstelle des Bundes) explicitly emphasizes that there are no minimum employee numbers or threshold values. Furthermore, eligibility to complain is not limited to permanent full-time staff. The statutory definition of an employee also includes part-time workers, trainees, individuals undergoing vocational training, quasi-employees (arbeitnehmerähnliche Personen), and job applicants. Former employees can also lodge a complaint, provided that the disadvantage arising from the previous employment relationship continues to have an effect.

In practice, a right is ineffective if those entitled to it are unaware of its enforcement channels. Therefore, § 12 Abs. 5 AGG establishes a clear obligation of disclosure for corporate management. The employer must make known within the operation where and with whom the complaints office is located and in what form submissions can be made. This must be done via notice board, digitally on the intranet, or as a fixed component of the onboarding process. The organization can either designate specific individuals by name or establish a functional department as the point of contact.

Setting up the complaints office is not a discretionary choice for managing directors, but a statutory duty of supervision. Failing to establish a complaints office or organizing it defectively constitutes an organizational defect that creates liability in the event of a dispute.

The functionality of the entire complaint procedure stands and falls with the trust of employees in the confidentiality of investigations. Anyone who reports discrimination or harassment discloses sensitive personal experiences and frequently fears social or professional consequences. The complaints office is therefore strictly obligated to treat information regarding incoming reports, involved individuals, and the contents of investigations confidentially and not to disseminate it without authorization within the workplace.

However, confidentiality must not be confused with absolute anonymity vis-a-vis the employer. If a complainant demands that the accused person under no circumstances be informed of the allegations, the complaints office enters a legal conflict of objectives. Legal analysis shows that the primary purpose of the complaint procedure is to provide the employer with the necessary facts to initiate remedial measures. Furthermore, the accused person possesses a right to be heard. Without concrete facts and naming names, labor law sanctions against perpetrators can hardly be enforced in a legally secure manner.

Data processing within the complaints office is purpose-bound. Notification to company management is legally permissible and required as soon as concrete remedial measures pursuant to § 12 Abs. 3 AGG - such as a warning, transfer, or termination - become necessary. Conversely, forwarding investigation results to third parties or other company bodies, such as the works council (Betriebsrat), without the consent of the affected individuals is impermissible under data protection law.

Balancing the protection of the affected person with the defense rights of the accused requires diligent operational process management that precisely records every step of the investigation.

Statutory protection against reprisals is the foundation upon which trust in company complaint channels rests. § 16 Abs. 1 AGG establishes an absolute prohibition of reprisals (Maßregelungsverbot): The employer must not disadvantage employees for exercising rights under the AGG or for refusing to carry out an unlawful instruction. Pursuant to § 16 Abs. 2 AGG, the same applies to individuals who support the complainant as witnesses or in an advisory capacity.

Protection against reprisals takes effect at the exact moment the complaint is submitted or the supporting action is performed. As the Federal Anti-Discrimination Agency makes clear, this protection does not depend on whether the complaint ultimately proves to be justified. As long as the submission is not intentionally false or frivolous, the reporting person enjoys full protection against any disadvantage inflicted by executives or corporate management.

For HR management, the prohibition of reprisals entails an increased burden of proof for all personnel measures taken against the reporting person following a complaint. Dismissals, formal warnings, transfers, denial of pay raises, or negative performance evaluations that coincide in time with an AGG complaint come under urgent suspicion of being impermissible reprisals. If such a measure is challenged in court, the employer must demonstrate and prove that the decision was based exclusively on objective grounds independent of the complaint.

The prohibition of reprisals safeguards the integrity of the business. Executives must be trained to strictly avoid any appearance of retaliatory measures following an AGG report.

In operational reality, informal or anonymous reports regarding discrimination, harassment, or bullying are received time and again. When employees omit their names out of fear of consequences, the AGG complaints office faces an operational challenge. Legal classification requires a nuanced handling between receiving a tip-off and conducting a formal investigation procedure.

A purely anonymous complaint does not initiate the formal procedure under § 13 AGG in full. The expertise of the Federal Anti-Discrimination Agency highlights that legal investigation and the enforcement of remedial measures reach clear boundaries when identity is lacking. The employer cannot impose burdensome labor law sanctions under § 12 Abs. 3 AGG on an accused employee if the allegation is based exclusively on unproven, anonymous assertions. Here, the principle of the right to be heard prohibits punishment based on suspicion alone.

No, the obligation to establish an AGG Complaints Office applies unconditionally from the very first employee, with no minimum threshold, unlike other compliance regulations.

The right to file a complaint applies to full-time and part-time employees, trainees, apprentices, applicants, and even former employees if the discrimination continues from a previous employment.

The employer is required under § 12 Abs. 5 AGG to clearly announce the office's location, contact persons, and procedures. This can be done via notice boards, digital intranets, or as part of the onboarding process.

No, a purely anonymous complaint without concrete evidence limits the employer's ability to impose labor law sanctions, as the accused person has a right to be heard.

Yes, the prohibition of reprisals under § 16 AGG explicitly protects anyone who supports the complainant or acts as a witness from any professional disadvantages or retaliation by management.