Severely Disabled Applicants: Failure to Instruct the Employment Agency as an Indication of Discrimination (Federal Labour Court, 8 AZR 123/24)

In its judgment of 27 March 2025 (8 AZR 123/24), the Federal Labour Court (Bundesarbeitsgericht, BAG) further specified the duties of employers when involving the employment agency in the application procedure of severely disabled persons. The starting point is the statutory obligation to contact the Federal Employment Agency (Agentur für Arbeit) at an early stage in order to identify suitable severely disabled applicants.

According to the decision, it is not sufficient merely to publish a vacancy on the job exchange of the employment agency. Rather, the failure to issue a specific placement request (Vermittlungsauftrag) may be regarded as a breach of the statutory duties to promote severely disabled persons and may constitute an indication of discrimination on grounds of severe disability.

In the case decided, the employer had not issued a placement request and had filled the position at short notice with another candidate. A severely disabled applicant then claimed compensation for discrimination. The Federal Labour Court made clear that such a procedural breach is in principle capable of triggering the statutory presumption of discrimination. At the same time, the court emphasised that such an indication does not automatically lead to compensation. What remains decisive is whether the employer can rebut the presumption with comprehensible and non-discriminatory reasons. In the specific case, the employer succeeded in rebutting it.

From a legal perspective, the decision is predominantly regarded as a clarification: the substantive requirements for personnel selection are not tightened, but the formal requirements for the recruiting process are. Organisational omissions in particular may come into sharper focus in future. For companies, this means that the employment agency should be involved not merely formally but actively. In particular, issuing a placement request and documenting the individual procedural steps are gaining in importance.

Discrimination risks thus increasingly arise from insufficiently structured hiring procedures rather than from the actual selection decision. Companies are therefore well advised to design their recruiting processes in a standardised and traceable manner.