HR-Glossar
Recruiting (hiring and selection)
How a German hiring process is built, which measures actually say something and which legal limits apply from the job advert onwards.
1. What is Recruiting (hiring and selection)?
Recruiting covers every step from identifying a staffing need to the offer: clarifying the need, the requirement profile, advertising or direct approach, selection, decision and contract offer.
The process has one property that sets it apart from other HR processes: it is visible from outside. Every step is experienced by people who do not know the business – and they draw conclusions about the employer as a whole. An application left unanswered has an effect beyond the individual case.
In law the procedure is more tightly framed than is often assumed. The AGG applies from the job advert onwards; questions at interview are permissible only so far as there is a legitimate interest; and processing applicant data is subject to data protection law, including a duty to erase once the procedure ends.
2. Origin and development
For a long time recruiting was an administrative task: advertise the post, review the applications, select. That worked while many applications arrived for each post.
As skilled people have become scarce the direction has reversed. Where applicants are the scarce side, the business no longer decides alone – it is itself examined. Two developments have grown from this: the direct approach to people who are not looking, and attention to how the procedure is experienced.
In parallel the legal frame has tightened. The AGG has made the advert and the selection decision challengeable – with an evidential rule that shifts the burden of proof once indications are shown. And the GDPR has turned the collection of application materials into a documented process.
Together these produce a requirement many procedures do not meet: traceability. A careful but undocumented selection cannot be defended in a dispute.
3. Core principles and how it works
The requirement profile comes first
Without clear, justified requirements no selection is comparable – and no rejection justifiable. It is at the same time the basis of any AGG defence.
The AGG applies from the advert
Section 11 AGG requires an advert neutral as to the protected characteristics. An ill-considered phrase can suffice on its own as an indication.
Structured selection is both better and more defensible
The same questions for everyone, documented assessment. That raises the quality of selection and is the only exculpatory evidence in a dispute.
The right to ask has limits
Permissible is what is legitimate for the specific post. Questions about pregnancy, health without connection to the work, or union membership are not – and an impermissible question may be answered untruthfully.
Applicant data must be erased
Once the procedure ends and the period for bringing AGG claims has run. Keeping data indefinitely is not permitted; a talent pool needs consent.
Speed is a selection criterion – for applicants
Where skilled people are scarce, long procedures decide against the business regardless of how attractive it is.
Rejections are part of the process
They cost little and last long. An unanswered application is the cheapest avoidable damage in the whole procedure.
4. Who is Recruiting (hiring and selection) relevant for?
- HR – they steer the process and carry the legal consequences.
- Managers with open posts – they decide and set the pace.
- Businesses competing for skilled people – for them the process is a competitive factor.
- Works councils – there is a right of participation on hiring under Section 99 BetrVG.
- Data protection leads – retention and erasure have to be settled.
5. How it differs from related terms
- Recruiting and employer branding – the brand works before the procedure and produces applications; recruiting carries them to a decision. - Recruiting and candidate experience – one is the process, the other how it is experienced by applicants. - Recruiting and onboarding – the offer ends recruiting; onboarding begins there, not on the first working day. - Direct approach and advertising – approaching people who are not looking is subject to the same AGG requirements. - Recruiting and selection – selection is one step within recruiting, not the whole of it.
6. Variants and adaptations
Routes and what they suit:
- Job advert – the standard case; reaches only people who are actively looking. - Direct approach – through professional networks; laborious, but often the only route for scarce profiles. - Referral schemes – effective and cheap, but they reinforce the homogeneity of the workforce. - Internal advertising – Section 93 BetrVG allows the works council to require it; it also opens up people already there. - Recruitment agencies – usual for management positions and rare profiles. - Apprenticeships and working students – the longest route, with the strongest retention.
7. Advantages and challenges
Advantages
- A structured process improves both selection quality and legal certainty
- Clear requirement profiles shorten procedures and reduce wrong decisions
- Fast procedures are a real advantage in competing for skilled people
- Documented selection is the only exculpatory evidence in an AGG case
- Internal advertising opens up people who are already there
Challenges
- Unstructured procedures are neither good nor defensible
- The AGG risk begins with the advert and is frequently overlooked there
- Referral schemes reinforce the homogeneity of the workforce
- Long decision paths cost applicants, whatever the offer
- Data protection duties on retention and erasure are regularly not met
- Circulating benchmark figures are barely comparable because definitions differ
8. Best practices for implementation
Sharpen the requirement profile before advertising
Which requirements are essential, which desirable, and why? An overloaded list deters suitable applicants and lengthens the procedure.
Hold and assess structured interviews
The same questions, the same assessment logic, a documented result. That is quality assurance and AGG defence at once.
Agree decision deadlines
How many days to a response, how many to a decision. Without an agreement the process loses people at exactly the points where applicants drop out.
An erasure concept for applicant data
Retention until the AGG claim period has run, then erasure. A talent pool needs express consent.
Reject promptly and personally enough
Not a standard text after three months. The effort is small, the effect on the employer's reputation considerable.
9. Tips for employers and employees
For employers
- **The AGG applies from the advert** – Section 11 AGG; a phrase can suffice as an indication
- **Select in a structured way and document it** – the only exculpatory evidence
- **Erase applicant data** – indefinite retention is not permitted
- **Speed is a competitive factor** – long procedures lose applicants
For employees
- **You may answer an impermissible question untruthfully** – about pregnancy, for instance
- **You can request information about your data** – Article 15 GDPR
- **Claims under Section 15 AGG are time-limited** – and the period is short
- **Ask what happens next** – a process with no dates is a warning sign
10. Conclusion
Recruiting is the only HR process that is visible from outside: every step is experienced by people who otherwise do not know the business, and they draw conclusions about the employer as a whole. An unanswered application is therefore the cheapest avoidable damage in the entire procedure.
In law the risk starts earlier than usually assumed: the AGG applies from the advert, and its evidential rule shifts the burden of proof onto the employer once indications are shown. That makes documentation of the selection decisive – a careful but undocumented decision cannot be defended in a dispute. A job advert drafted centrally and translated is the most frequent trigger, and two German steps that a group-wide hiring workflow will not contain deserve a place in it: the works council's participation under Section 99 BetrVG, and the erasure of applicant data.
It is worth noting that one measure solves both problems: a structured procedure with a clear requirement profile, the same questions and a documented assessment raises the quality of selection and is at the same time the only evidence that will hold.
On measures, a reservation: circulating benchmarks for time to hire or cost per hire rest on very different definitions and are no use for comparison across sectors. Your own trend over time says more than any external figure.
Sources
- Section 11 AGG – Job advertisements (official English version) (opens in a new tab)
- Section 7 AGG – Prohibition of discrimination (official English version) (opens in a new tab)
- Section 26 BDSG – Data processing for the purposes of the employment relationship (official English version, as at 23 June 2021; the German text governs) (opens in a new tab)
- Section 99 BetrVG – Co-determination in individual personnel measures (official English version) (opens in a new tab)
- Federal Employment Agency – labour market and skills needs (English pages) (opens in a new tab)
Related terms
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