Authors: Doris Liebscher, Anne Kobes, published by the Federal Anti-Discrimination Agency (FADA) Year of publication: 2010

Brief overview

The expert opinion analyses the legal scope of complaints which can be lodged according to Section 13 of the General Equal Treatment Act and it comprises practical suggestions on their implementation.

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Main results

The right of appeal pursuant to Section 13 of the General Equal Treatment Act

The General Equal Treatment Act grants a comprehensive right of appeal to the employees of a company with regard to discriminations. For this purpose, the concrete organisation of the complaint procedure and of the complaint department to be established is left to the employees.

How should the complaints unit be organised?

• The employer may either appoint particular persons as focal points for complaints or may establish a department competent for complaint procedures.
• In case of sexual harassment it should be possible to complain by reporting the case to a person of one's own gender.
• Equal Opportunities Commissioners or Severely Disabled Persons’ Commissioners shall only be declared to be in charge if they are able to explicitly assume employers’ tasks, i.e. the right of examination and of summarising the outcomes.
• The works council does not belong to the range of competent focal points, since it cannot assume employees’ tasks and is not obliged to forward the complaint.

In practice, there is frequently a double mandate of Equal Opportunities Commissioner and Severely Disabled Persons Commissioner. This involves the risk of conflicting interests. Therefore, the employer should clarify in advance how the cooperation of the complaint department with the Equal Opportunities Commissioner, Severely Disabled Persons Commissioner, staff council or works council should be implemented. The right of appeal pursuant to Section 13 of the General Equal Treatment Act should enable the staff members to have direct access to their employer. Interest groups might take an active and supporting part or a joint body with equal representation could be established.

What are the requirements which the complaint procedure should comply with?

• The employer has to examine the complaint. The handling can be assigned to the complaint department. However, the employer has to be able to reach a conclusive decision on these facts.
• These facts have to be clarified by using all means available to the employer and/or the complaint department. The parties concerned should be consulted and heard.
• The result of the examination has to be reported to the complainant and - at least in case of a rejection of the complaint - has to be justified. The result should be available within a reasonable period of time, not longer than two weeks.
• It is recommended to keep records of all incidents. However, the complaint should be kept separately from the personnel files.
• The rights of the employee representative body shall not be affected.

Who may file a complaint?

Complaints may be filed by any employee who feels discriminated against on grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual orientation. The General Equal Treatment Act starts out from a broad definition of the term employees, which also includes job applicants, trainees and own account workers. No disadvantages must arise to the complainants as well as to the persons supporting them because of their making use of the right of appeal. The complaint procedure may be implemented in parallel with a suit.

How should a complaint procedure be implemented?

A step-by-step procedure would be appropriate:

1. In a first step the complaint is to be taken.
2. In a second step the facts are to be determined.
3. In a next step it should be examined whether the General Equal Treatment Act has been infringed.
4. The result of this examination should then be communicated to the complainant.
5. Finally, the employer should take the appropriate measures.

A sample template for the documentation of a complaint according to Section 13 of the General Equal Treatment Act can be found here.

Which measures should be taken on the part of the employers if a discrimination has come to notice?

• In case of discriminations on the part of the employer the latter shall be obliged to take remedial measures, to stop the discrimination and to subsequently grant the benefits which had been withheld.
• In case of discrimination on the part of the employees the employer has a duty to ensure protection. In the specific case the employer has to take the appropriate, necessary and adequate measures to stop the discrimination, for example by a warning letter, transfer of staff to a different workplace within the company/authority, relocation of staff by transfer to a subordinate authority and/or to another affiliate or branch within the group or dismissal.
• Also in case of discriminations by third parties, as e.g. business partners or clients, the employer has a duty to ensure protection. In exceptional cases this may even lead to an interruption of the business relationship.

What can works council do when employers do not establish a complaint department?

If the employer grossly violates the duty of establishing a complaint department, the works council and also the trade unions may file a request to the labour court asking for the employers’ taking these measures.

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