Employers are obligated to contact the Federal Employment Agency in good time before filling a vacancy. This includes issuing an explicit placement order, taking the organisational processes prescribed by the Federal Employment Agency into consideration. Merely placing an advertisement on the Federal Employment Agency's placement portal (job portal) is insufficient. If a severely disabled person unsuccessfully applies for a job without a placement order having been previously issued, this may give grounds for the presumption of a disadvantage due to severe disability and result in a compensation obligation under the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG).

Legal basis and employer obligations

The obligation to issue a placement order arises from section 164 (1) sentence 2 of the German Social Code Volume IX (SGB IX). In practice this provision is little known. It subjects employers to an obligation to check whether vacancies could be filled by severely disabled persons, in particular those who have registered with the Federal Employment Agency as job seekers. The key sentence, sentence 2 of the regulation states that: “They [employers] must contact the Federal Employment Agency in good time”. A recent decision of the Federal Labour Court (Bundesarbeitsgericht, BAG), (BAG, judgment dated 27 March 2025 – 8 AZR 123/24) made the liability risks of failing to comply with this obligation clear.

Judgment of the BAG dated 27 March 2025 – 8 AZR 123/24

This decision was based on the following circumstances:

The respondent employer placed an advertisement on the internet advertising for a vacancy without issuing a placement order to the Federal Employment Agency. The severely disabled claimant applied for the role online and informed the employer of their severe disability. Receipt of the application was automatically confirmed. On the same day, but before the severely disabled applicant’s application was received, the employer  selected another candidate from the previously received applications. The severely disabled applicant was unsuccessful and filed a claim for compensation against the employer under the AGG.

The claimant argued that the absence of a placement order breached section 164 (1) sentence 2 SGB IX and this represented sufficient indication for a discrimination claim on the grounds of their severe disability. In this case, the employer had indeed not issued a placement order to the Federal Employment Agency and merely posted vacancies on private job portals.

The BAG held (BAG, judgment dated 27 March 2025 – 8 AZR 123/24) that there was no claim to compensation in this instance as the candidate selection took place before the severely disabled claimant’s application was received. In this case it could also be shown by the corresponding documentation. The BAG, however, confirmed that the absence of a placement order did give grounds for the presumption of a disadvantage. It held that contacting the Federal Employment Agency in good time in accordance with section 164 (1) sentence 2 SGB IX mandatorily involved issuing an explicit placement order. The BAG clarified that merely advertising the job vacancy on the Federal Employment Agency's job portal was insufficient because otherwise the regulation’s intended purpose with placement orders to improve the chances of severely disabled people on the job market had not been fulfilled.

Practical relevance

This decision has made it clear that involving the Federal Employment Agency should be taken seriously. If there is evidence that the final candidate selection took place before the severely disabled applicant's application was received the assumption of discrimination will lapse. However, in practice, this will rarely be possible. The following consequences, in particular, arise for employers:

• Employers must check whether newly vacated or newly created jobs could be filled by a severely disabled person.
• If this is the case the employer must notify the Federal Employment Agency of the vacancy.
• Merely placing an advertisement on the job portal is not sufficient.
• Employers must issue an explicit placement order to the Federal Employment Agency.
• The placement order must include all information relevant to the role, in particular comprehensive information on the employer, type of work, type of contract, working hours and remuneration, as well as requirements for the applicant's education, mobility, knowledge, skills and personal characteristics.
• The placement order must be issued in good time so that the Federal Employment Agency can set it up well in advance.

Conclusion

Breaching the obligations under section 164 (1) sentence 2 SGB IX may indicate that severely disabled applicants have been disadvantaged under section 22 AGG and this forms the basis of a claim for compensation. These obligations also equally apply to people who may be categorised as severely disabled people in accordance with section 2 (3) SGB IX .

In addition, the placement order also has an impact on the participation of the Works Council under section 99 (1) sentence 1 of the German Works Council Constitution Act (Betriebsverfassungsgesetz, BetrVG). If the employer breaches their obligation to check whether newly vacated or newly created jobs could be filled by a severely disabled person or they do not contact the Federal Employment Agency in good time, the Works Council may refuse to approve the hiring in accordance with section 99 (2) no.1 BetrVG (BAG, judgment dated 23 June 2010 – 7 ABR 3/09).

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