Missing Inclusion Officer as an Indication of Discrimination (Federal Labour Court, 8 AZR 276/24)

The Federal Labour Court (Bundesarbeitsgericht, BAG) has ruled that the failure to appoint an inclusion officer (Inklusionsbeauftragter) can be a strong indication of discrimination within the meaning of the German General Equal Treatment Act (AGG). In the landmark judgment (BAG, 26 June 2025, case no. 8 AZR 276/24), a severely disabled employee brought an action, among other things, challenging a written warning she had received after refusing work that was not adapted to her disability. The BAG made clear that employers are mandatorily required under § 181 of Book IX of the German Social Code (SGB IX) to appoint an inclusion officer if they employ severely disabled persons. If this statutory duty of support is disregarded, the burden of proof in a dispute is rapidly reversed. The employer must then laboriously prove that a detrimental treatment in the individual case had nothing whatsoever to do with the disability.

According to the court, the mere failure to appoint does not automatically mean that compensation is immediately due. Nevertheless, this case law is an extremely sharp sword against employers, as it drastically complicates the procedural defence. As soon as the specific concerns of severely disabled employees are affected – for instance in work instructions or dismissals – the omission acts like an accelerant for damages claims. Many companies underestimate this formal duty and often treat it as a mere formality or bureaucratic nuisance. The bitter reality, however, is that supposedly minor omissions in organisational duties can lead to significant financial risks in AGG proceedings.

Review your organisational structure immediately and implement the requirements of SGB IX in a legally secure manner. Formally appoint an inclusion officer at once if your company is subject to the statutory employment obligation. Also ensure that – where required by law – the representative body for severely disabled employees (Schwerbehindertenvertretung, SBV) is properly involved and heard in advance of all personnel measures. A cleanly documented HR process is your best and cheapest protection against unjustified and expensive discrimination claims.