Setting up a complaints office under Section 13 AGG

How it runs

1. 1

   Survey and the basic decision

   We record what applies today and set the three possible cuts against your structure: internal, external, or both side by side. The basic decision comes at the end of this step because everything else follows from it: an internal body needs exclusion rules and deputies, an external one needs a mandate and an internal decision-making body. Whether full externalisation is permissible is answered differently across the German employment law commentary, which is why the external body is built as a supplement to internal responsibility rather than a replacement for it. We prepare the decision, the employer takes it.

2. 2

   Staffing and deputising

   We settle who is named, how many bodies there are, who deputises and what happens in a conflict of interest. Section 13 Para. 1 AGG requires competence and reachability, not a particular choice of person, which makes this an organisational decision rather than a legal one. In practice it fails most often because a single person is named and that person manages half the workforce.

3. 3

   The procedure in writing

   The procedural rulebook describes the path of a complaint from receipt to notification of the outcome and names the point at which the matter passes to the employer. In parallel we prepare the building blocks for a works agreement, if one is to be concluded. You receive text blocks and process diagrams; the legal review of the draft stays with you or your counsel.

4. 4

   Involving the works council

   Section 13 Para. 2 AGG states that the rights of employee representative bodies remain unaffected, and Section 87 Para. 1 BetrVG makes co-determination conditional on the absence of a statutory or collective agreement rule. Whether and how far your specific procedure is subject to co-determination is a question of the individual case that we do not decide for you. We build the sequence so the works council can be involved at the right point, and we supply the documents it asks for during negotiation.

5. 5

   Publication inside the establishment

   Section 12 Para. 5 sentence 1 AGG requires the Act, Section 61b ArbGG and information on the competent body to be published within the establishment, and sentence 2 permits this by physical notice, by making the material available at a suitable place, or through the information and communication technology customary in the establishment. We settle with you which of those routes is the customary one in your case and supply the version for that route, together with the onboarding block. This is the step most often left undone, and the first one noticed, because it is the only part of the set-up visible from outside.

6. 6

   Induction, evidence and effectiveness

   The named people are inducted in intake, conducting conversations and documentation, and managers receive the notice required by Section 12 Para. 2 sentence 1 AGG. Sentence 2 of the same provision gives training its own weight: on its wording, where the employer has trained employees in a suitable manner for the purpose of preventing disadvantage, that counts as discharge of the duties under Para. 1, and sentence 2 of Para. 1 expressly includes preventive measures in that protection. From this point every case runs in the workspace with date of receipt, deadline, status and parties. What then exists is not only the body and the evidence that it exists, but with the annual anonymous survey of the workforce also the answer to whether it is being used at all.

The legal frame

Four provisions determine what has to be settled when the body is set up and who has to be involved. Each is quoted in the German original, because that is the wording that binds, with the effect stated underneath.

Section 13 Para. 1 AGG

Die Beschäftigten haben das Recht, sich bei den zuständigen Stellen des Betriebs, des Unternehmens oder der Dienststelle zu beschweren, wenn sie sich im Zusammenhang mit ihrem Beschäftigungsverhältnis vom Arbeitgeber, von Vorgesetzten, anderen Beschäftigten oder Dritten wegen eines in § 1 genannten Grundes benachteiligt fühlen. Die Beschwerde ist zu prüfen und das Ergebnis der oder dem beschwerdeführenden Beschäftigten mitzuteilen.

The wording names no person, no legal form and no number of bodies. What it requires is competence, examination and a reply. That is why setting the body up is an organisational decision: who is named and how many bodies exist is for the employer to settle, and it has to be settled, because a body that has not been named is not competent.

Section 12 Para. 5 AGG

Dieses Gesetz und § 61b des Arbeitsgerichtsgesetzes sowie Informationen über die für die Behandlung von Beschwerden nach § 13 zuständigen Stellen sind im Betrieb oder in der Dienststelle bekannt zu machen. Die Bekanntmachung kann durch Aushang oder Auslegung an geeigneter Stelle oder den Einsatz der im Betrieb oder der Dienststelle üblichen Informations- und Kommunikationstechnik erfolgen.

Setting up does not end with the appointment. Sentence 2 answers the question that comes up in every rollout: a physical notice, making the material available at a suitable place, and the information and communication technology customary in the establishment are equally valid routes, so an intranet suffices where the intranet is the customary medium. What the wording does not settle is the evidence, which is why the date, the version and the distribution route should be recorded.

Section 84 Para. 1 BetrVG

Jeder Arbeitnehmer hat das Recht, sich bei den zuständigen Stellen des Betriebs zu beschweren, wenn er sich vom Arbeitgeber oder von Arbeitnehmern des Betriebs benachteiligt oder ungerecht behandelt oder in sonstiger Weise beeinträchtigt fühlt.

Alongside the AGG right sits a second one that is not tied to the grounds in Section 1 AGG. A procedure that recognises only AGG cases turns everything else away and loses precisely the cases that are not yet discrimination. The rulebook should cover both routes, together with the works council's remit under Section 85 Para. 1 BetrVG.

Section 87 Para. 1 BetrVG

Der Betriebsrat hat, soweit eine gesetzliche oder tarifliche Regelung nicht besteht, in folgenden Angelegenheiten mitzubestimmen: 1. Fragen der Ordnung des Betriebs und des Verhaltens der Arbeitnehmer im Betrieb;

The wording makes co-determination conditional and lists subject matters; it does not decide any particular case. Whether your complaints procedure falls under it depends on what it regulates and on what is already covered by statute or collective agreement. We put the question into the sequence rather than answering it, and Section 13 Para. 2 AGG in any event leaves the rights of employee representative bodies expressly unaffected.

How the price is built

Setting up is a project with an end, not a standing relationship. The price therefore has four components, each shown separately, so you can see what falls once and what remains afterwards.

• The number of sites and whether a reachable body is planned per site.
• Whether a works agreement already exists, is to be concluded or is to be amended.
• Whether the body is staffed internally or given to an external provider.
• The number of people to be named and inducted, deputies included.
• The languages the reporting route and the publication have to exist in.

You receive a fixed figure per component once the number of sites and the staffing model are settled. The platform is EUR 49 per officer role per month and is shown separately.

Frequently asked

Is every company in Germany required to set up a complaints office?

The AGG names no threshold. Section 13 Para. 1 AGG gives employees the right to complain to the competent bodies of the establishment, the company or the public agency, and Section 12 Para. 1 AGG obliges the employer to take the necessary measures to protect against disadvantage. A right to complain to a competent body presupposes that such a body has been named and can be reached. The duty therefore does not fall away for a small workforce, unlike the Whistleblower Protection Act, which in Section 12 Para. 2 HinSchG attaches to normally at least 50 employees. What changes with size is the appropriate effort: a company of twelve needs a named, reachable body, not a panel with deputising rules. One clarification belongs here, because a great deal of wrong information circulates on it: the AGG contains no penalty provision, so a missing or unpublished complaints body is not punished with an administrative fine. The consequences are civil and run through Sections 15 and 22 AGG.

Who can act as the complaints office under Section 13 AGG?

Section 13 Para. 1 AGG names no person, no qualification and no legal form, only the competent bodies of the establishment, the company or the public agency. HR, a specially named person of trust, a panel staffed with women and men, or an external provider are all possible. Whether the body may be staffed entirely externally is answered differently across the German employment law commentary: one line reads the wording as requiring the body to stay close to the establishment, another treats partial externalisation as permissible as long as the employer's duties are preserved. Both agree on the point that governs a set-up: the duties under Sections 12 and 13 AGG cannot be contracted away. The safe cut is therefore a supplement rather than a replacement, with intake, fact finding and recommendation outside and competence and decision inside the company. Whichever model is chosen, three practical points decide it: the body has to be reachable for all employees, it has to be able to examine complaints without being a party itself, and it has to report the outcome back as Section 13 Para. 1 sentence 2 AGG requires. Every appointment therefore needs a rule for the case where the named person is affected, is the manager or is the accused. Where only one person is named and that person is unavailable, the body is unstaffed for that period.

How many complaints bodies does a company with several sites need?

The statute fixes no number. Section 13 Para. 1 AGG speaks of the competent bodies of the establishment, the company or the public agency, in the plural and across three levels, without naming a minimum. The benchmark is reachability: a body that sits only at head office and is in practice unreachable for shift workers at another site does not perform its function for that workforce. Two models are common: one central body with defined availability and a reporting route covering all sites, or a named contact at each site with one central examining body behind them. Both are permissible; they differ in effort and in proximity to the people affected. For sizing, a German public tender for exactly this function is instructive: it asked for the body to be reachable by phone or email on every working day, for work on a complaint to begin within five working days, and it assumed a maximum of five complaints per year for an institution of roughly 200 people. Those are one buyer's requirements rather than statutory thresholds, but they put the most common objection, that the body will be swamped, into proportion.

Does the works council have to agree to the complaints office?

Two provisions have to be kept apart. Section 13 Para. 2 AGG states expressly that the rights of employee representative bodies remain unaffected, but says nothing itself about consent. Section 87 Para. 1 BetrVG provides that the works council has co-determination rights insofar as no statutory or collective agreement rule exists, and lists in number 1 questions of the order of the establishment and the conduct of employees within it, and in number 6 the introduction and use of technical facilities designed to monitor the conduct or performance of employees. Whether a particular complaints procedure or a particular digital reporting channel falls under those headings depends on what the rule contains and is a question of the individual case. Two levels are distinguished here: the organisational siting and the staffing of the body are treated as an organisational decision of the employer, while the procedure itself, meaning how a complaint is handled and how those involved are to conduct themselves in it, is assigned to the order of the establishment. Section 87 Para. 2 BetrVG then matters in practice: where no agreement is reached on a matter under Para. 1, the conciliation committee decides and its award replaces the agreement between employer and works council. The works council can therefore not only hold a procedure up but also push one through, which is why it is better to involve it early than to leave the question open and repeat the rollout later.

What does a works agreement on the complaints procedure have to settle?

A works agreement is not required by statute, but it is where the points that otherwise stay open become binding. In practice it settles the scope, the named bodies and their deputies, the reporting route as a confidential communication channel for complaints under Section 13 AGG, the path from receipt to notification of the outcome, the handling of confidentiality and disclosure, protection against detriment, which Section 16 Para. 1 AGG already provides for the exercise of rights and Section 84 Para. 3 BetrVG for the raising of a complaint, and the interface with the employer's decision. It is often drawn wider than the AGG and also covers bullying and sexual harassment, because the complaint right in Section 84 Para. 1 BetrVG is not tied to the grounds in Section 1 AGG. What matters is that it does not shift the duty to take measures under Section 12 Para. 3 AGG onto the complaints body, because that is not where it belongs.

Is there a template for the complaints office and the notice?

Templates are worth having for the publication under Section 12 Para. 5 AGG, usable for the procedural rulebook, and only a starting point for the works agreement. The publication has a fixed content because the statute states it: the AGG, Section 61b ArbGG and information on the bodies competent for complaints under Section 13. The form, by contrast, is open, since Section 12 Para. 5 sentence 2 AGG permits a physical notice, availability at a suitable place, or the information and communication technology customary in the establishment, so a template has to fit the medium chosen. The rulebook follows a recurring sequence and can largely be adopted as it stands. The works agreement, by contrast, depends on your structure, on existing rules and on the negotiation with the works council, which is why a template adopted unchanged regularly produces contradictions. CIVAC supplies the templates as organisational text blocks; the legal review of the draft stays with the company or its counsel.

How do we later prove that the complaints office exists?

The evidence has three parts, and the second is the one most often missing. First the appointment: who is competent, since when, and who deputises. Second the publication under Section 12 Para. 5 AGG with its date, its version and its distribution route: sentence 2 of that paragraph permits a physical notice, availability at a suitable place, or the information and communication technology customary in the establishment, but it requires no record, which is why the chosen route should be archived rather than published once. Third the running of the body: documented cases with date of receipt, examination and notification of the outcome, showing that the body does not merely exist but works. In the CIVAC workspace all three sit in one place, and the case documentation is append-only and exportable, so that in a dispute it can be shown when what was examined and who was told what.