Obligation to issue a placement order

BAG, judgment of 27.3.2025 - 8 AZR 123/24

This decision of the Federal Labour Court sheds light on the obligations of private and public employers when filling vacancies with regard to severely disabled applicants and at the same time specifies the conditions under which the failure to issue an explicit placement order to the employment agency is considered an indication of discrimination under Section 22 AGG. The decision therefore not only conveys clear obligations to act, but also sets important guidelines for documentation practice in recruiting and should therefore be integrated into the compliance processes of companies.

Facts of the case

The parties are in dispute over a claim by the plaintiff for payment of compensation pursuant to Section 15 (2) AGG due to a breach of the prohibition of discrimination on the grounds of disability in the context of an unsuccessful application procedure.

The defendant, a private service company in the field of IT security, was looking for a "Scrum Master/Agile Coach" and published the job advertisement on the job exchange of the Federal Employment Agency, among other places. It did not issue an explicit placement order to the agency.

The plaintiff applied electronically on August 24, 2021 at 12:30 p.m. and directly referred to his severe disability. A few hours earlier - at 11:09 a.m. - the responsible division manager had already approved the hiring of another applicant by email. That afternoon, the HR department sent this other applicant a draft contract, which both parties signed until September 3, 2021. The job advertisement remained online until then, but all applications received after the selection decision were no longer processed ("freeze"). The rejection to the plaintiff also only took place on September 3, 2021.

The plaintiff claimed compensation in the amount of 1.5 months' salary. He felt discriminated against due to his severe disability and relied on the presumptions of Section 22 AGG: The employer had violated Section 164 (1) sentence 2 SGB IX because it had not issued a placement order. The Labor Court and the Regional Labor Court dismissed the claim; the BAG confirmed the decisions.

Decision

The BAG dismissed the action as unfounded and rejected the plaintiff's claim for compensation pursuant to Section 15 (2) AGG. As part of its decision, the BAG clarified that private employers must also contact the employment agency at an early stage in accordance with Section 164 (1) sentence 2 SGB IX by means of an explicit placement order via the communication channels provided by the agency. This is the only way to check whether vacant jobs can be filled by severely disabled people, in particular by severely disabled people registered as unemployed or looking for work with the Employment Agency, and to suggest suitable severely disabled people to employers. The mere publication in the job exchange is therefore not sufficient. If the placement order is omitted, there is usually sufficient evidence within the meaning of Section 22 AGG for discrimination due to severe disability.

In the case at issue, however, the defendant succeeded in rebutting the presumption of discrimination against the plaintiff due to his severe disability. After taking extensive evidence, the court found that the selection procedure had already been completed before the plaintiff's application was received, as the plaintiff's application was received two hours after the recruitment decision. Consequently, the discrimination could not (any longer) be based on the severe disability, as this had not even been taken into account in the decision. The BAG also considers the practice of a "freeze" after the final selection to be permissible. Only the time of the recruitment decision is decisive, not the subsequent conclusion of the contract. Accordingly, the employer may keep the job advertisement open until the formal signing of the contract in order to be able to approach further candidates at short notice if the contract fails.

Practical tip

For day-to-day practice, the BAG's decision means that both private and public employers should in future place the placement order via a communication channel provided by the employment agency before filling any vacancies. Publications on the company's own career pages or on external online portals alone are not sufficient according to case law and are not able to invalidate the presumption effect of Section 22 AGG in the event of a dispute. If employers make a selection decision and nevertheless leave the job advertisement in place until the formal conclusion of the contract, it is advisable to document the exact time of the decision and all underlying considerations in a comprehensive, comprehensible and unalterable manner. Only by providing such complete evidence can the accusation of direct or indirect discrimination be effectively refuted and the risk of cost-intensive AGG claims for damages minimized.