The background to the complaint

1. The inquiry concerns EPSO's alleged failure to help a complainant who was heavily pregnant find appropriate dates for the oral tests for selection procedure EPSO/AD/227/11 which aimed at recruiting archivists in the field of archive and document management.

2. On 29 February 2012, EPSO informed the complainant that she was amongst the candidates admitted to the next phase of the competition and that she would be invited to participate in a written and an oral test which were to take place at an assessment centre in Brussels on 30 March and 25 April 2012 respectively. On 4 March 2012, the complainant informed EPSO that she was eight months pregnant and therefore unable to travel between those dates. She asked EPSO whether it had established special procedures, such as the possibility of rescheduling the tests, to accommodate the needs of pregnant women.

3. On 14 March 2012, EPSO asked the complainant to submit a medical certificate confirming her condition. It also informed her that the date of the written test could not be changed under any circumstances. On 15 March 2012, the complainant submitted the requested medical certificate and asked EPSO to consider the possibility for her sitting the test on the same date in a controlled environment in Athens.

4. On 21 March 2012, EPSO informed the complainant that she could take the written test in the premises of the European Parliament's Office in Athens. Regarding the oral test, EPSO noted that, for reasons relating to the need of simultaneous participation of a number of candidates in group exercises and the availability of board members, as well as to EPSO's general planning of competitions, the oral tests could not be rescheduled or organised outside Brussels. It added that the last day of testing for candidates with English as their main language was 25 April 2012.

5. On 25 March 2012, the complainant replied to EPSO expressing her dissatisfaction with its failure to accommodate the special needs resulting from her pregnancy. She noted that EPSO should have foreseen ways of solving problems relating to candidates' objective inability to be physically present in a specific place during competitions, such as by organising videoconferences or extending the testing period. She informed EPSO that, since she was unable to participate in the oral test, her participation in the written test would serve no purpose. On 26 March 2012, EPSO replied to the complainant. It explained that the format of oral exercises, the kind of competencies tested, the specificity of the evaluation system, as well as different logistical and organisational constraints, do not allow EPSO to change the rules governing the assessment centre exercises or to adapt the schedule to the individual needs of candidates. It underlined that it makes an effort to accommodate candidates with special needs, but only if solutions are reasonable and feasible.

6. On 8 April 2012, the complainant turned to the European Ombudsman.

The subject matter of the inquiry

7. The complainant put forward the following allegation and claim.

Allegation:

By failing to find an alternative solution enabling the complainant to participate in the oral tests, EPSO failed to take into account the complainant's specific situation and to comply with the principle of equal treatment.

Claim:

EPSO should take into account the complainant's specific situation and take all necessary measures that could enable her to participate in the assessment centre tests.

The inquiry

8. On 27 April 2012, the Ombudsman requested EPSO to submit an opinion on the present complaint. In addition, he asked EPSO to indicate how it accommodates the needs of pregnant women who cannot travel in order to participate in the assessment centre tests. On 27 July 2012, EPSO provided its opinion. The Ombudsman received the complainant's observations thereon on 27 September 2012.

The Ombudsman's analysis and conclusions

A. Alleged failure to accommodate the complainant's special needs and related claim

Arguments presented to the Ombudsman

9. In its reply, EPSO emphasised its commitment to the principles of equal treatment and non-discrimination. It noted that it has created a dedicated Accessibility Team, with a view to finding solutions and accommodating candidates with special needs. It explained that it examines such requests on a case-by-case basis and tries to find a solution that is not only appropriate, but also reasonable and proportionate. EPSO added that, in 2011, it granted all requests to spread the assessment centre tests over two days and to sit written tests in a separate room.

10. EPSO drew the Ombudsman's attention to the fact that, at the assessment centre stage, it has to take into consideration several factors, such as (i) the languages chosen at registration, (ii) the availability of the selection board, (iii) the minimum and maximum number of candidates for group exercises, and (iv) the competition time frame. It stated that "the Assessment Centre is an advanced approach to evaluating pre-defined competencies" by observing participants' behaviour. The EPSO Assessment Centre for Administrators in specialist competitions, such as the one in which the complainant participated, consists of the following exercises: a case study in the field, a structured interview and a group exercise.

11. EPSO highlighted that the very nature of the group exercise does not allow for candidates to participate via videoconference, which could be an appropriate means for holding a simple interview, but not for the test in question. In fact, the assessment centre method involves evaluating behaviour in a standardised way, based on various work-related exercise scenarios. The Selection Board observes and evaluates both the content of the candidates' replies, and also their verbal and non-verbal behaviour. This means that the Selection Board assesses the candidates not only on the basis of what they say, but also on how they deliver their message and how they conduct themselves during each exercise. According to EPSO, due to the complexity of the assessment method, participation in a group exercise via videoconference would not be possible without compromising the accuracy and validity of the assessment, with particular regard to the principle of equal treatment of the candidates involved. EPSO further stated that, as the group exercise is also undertaken by other candidates (the minimum group size is of four candidates and the maximum is of six), any change in the group exercise date could have implications for the other candidates invited on the same day who could, in turn, be unavailable on the proposed new date.

12. EPSO underlined the fact that it had offered the complainant the possibility to sit the case study test in Athens, in the premises of the European Parliament Office, and that it had invited her to attend the oral test on the very last day available for those candidates who chose English as their second language. In EPSO's view, these efforts bear witness to its commitment to find a solution which was both appropriate and proportionate. However, it added that any measure to accommodate the special needs of individual candidates may only be applied on condition that they cause no prejudice to the interests of the other candidates or those of the EU Institutions, which need to be provided with the appropriate number of successful candidates within pre-established deadlines.

13. The complainant challenged EPSO's argument regarding the need to organise selection procedures within pre-established deadlines. She argued that candidates were not informed about these pre-established deadlines, and pointed out that such a practice allowed EPSO a wide margin of discretion in modifying the deadlines. The complainant noted that it took EPSO more than two months to publish the results of the computer-based pre-selection tests. She also noted that, when EPSO informed her that she would be invited to the assessment centre, it did not provide her with the exact dates but rather with approximate ones. In her view, the above-mentioned delays and imprecision are incompatible with the notion of tight pre-established deadlines.

14. The complainant further argued that EPSO has no established framework to accommodate requests from pregnant women who are in a similar situation. She highlighted that she was the one to propose that the written test take place in Athens. The complainant focused on the possibility of participating in the oral test via videoconference. She argued that such possibility is widely used by large companies and is considered to be an efficient method in recruitment procedures. In her view, recourse to videoconferencing would not cause any delays and, contrary to EPSO's vague submissions ,could not harm the institutions' interest. She added that, as far as equal treatment between candidates is concerned, there was no risk that other candidates would be treated less favourably. In fact, she would be the one to suffer a disadvantage vis-à-vis other candidates, since she would have to make extra efforts to demonstrate her skills. However, she stated, she was willing to accept that risk.

15. According to the complainant, EPSO's failure to accommodate her needs resulted in her exclusion from the selection procedure and went against the prohibition of unequal treatment of men and women regarding access to employment.

The Ombudsman's assessment

16. Article 21 of the Charter of Fundamental Rights of the European Union states that: "Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited." The principle of non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way, unless, in either case, such treatment is objectively justified[1]. Individuals who are in different situations should, therefore, receive different treatment to the extent that this is necessary, in order to allow them to enjoy particular opportunities on the same basis as others. Failure to do so constitutes discrimination, unless such treatment is objectively justified.

17. The complainant was not in a situation that was comparable to that of other candidates: the reason she was unable to be physically present in the Assessment Centre was her advanced pregnancy. The Ombudsman has already examined cases raising similar issues[2]. He has consistently taken the view that principles of good administration require institutions to take into account the particular situation of pregnant candidates and to accommodate their special needs.  However, compliance with this obligation should not put an excessive burden on the institutions. It only requires institutions to make all reasonable efforts to accommodate the special needs of pregnant women.

18. The Ombudsman recognises that there is always a risk that reasonable efforts will not suffice to enable a pregnant woman (especially a heavily pregnant woman) to participate in a competition. In sum, there may be cases where a solution cannot be found which will be both reasonable for the institution and satisfactory to the concerned candidate.

19. In the present case, EPSO accepted the complainant's suggestion that she sit the written test in Athens and therefore demonstrated its willingness to accommodate the complainant's special needs in this respect. It refused the possibility of extending the testing period for the oral tests or allowing the complainant to participate in the oral test via videoconference. The Ombudsman will therefore examine whether the reasons put forward by EPSO in support of its refusal were justified and whether EPSO demonstrated its willingness to accommodate the complainant's special needs.

20. Regarding the possibility of participating in the oral test via videoconference, EPSO argued that, in the context of the group exercise, candidates are not only assessed on the basis of the content of their replies, but also on the basis of their verbal and non-verbal behaviour. According to EPSO, participation in a group exercise via videoconference entails the risk of distorting the assessment and breaching the principle of equal treatment of candidates. The Ombudsman finds this approach to be justified and reasonable. In fact, while a videoconference may be an appropriate means to carry out a simple interview with a candidate, it does not allow the selection board to have a complete view of the candidate's conduct, especially his/her interactions with other candidates.

21. The complainant argues that participating in the group exercise via videoconference would only disadvantage the candidates who are not physically present. The Ombudsman does not, however, share this view. The fact that the selection board is not in a position to evaluate adequately the way a candidate who participates via videoconference behaves and interacts with others might be beneficial to that candidate in case his/her skills are not particularly strong or are less developed than those of the other candidates participating in the group exercise. The Ombudsman also finds that it is possible that the behaviour of the other candidates could be adversely affected if they are forced to undertake a group exercise alongside a candidate using a video link. This would make it difficult to evaluate their behaviour properly. There is therefore a risk that the principle of equal treatment vis-à-vis the candidates who are physically present would not be adhered to. Hence, the Ombudsman finds EPSO's refusal to allow the complainant to participate via videoconference to be justified.

22. Regarding the possibility of extending the testing period, EPSO justified its refusal to do so by arguing that any change in the date of the group exercise might have implications for the other candidates. The Ombudsman has already established that this consideration is not sufficient to justify EPSO's refusal to extend the testing period. In the course of his inquiries into complaint 1933/2010/BEH, the Ombudsman pointed out that, although EPSO could not postpone the complainant's test date without the prior consent of the other candidates, nothing prevented EPSO from consulting them in order to find out whether they would be prepared to accept a new test date which would suit the complainant's specific situation, especially in view of the very small number of candidates who were invited to take the assessment centre test at the same time as the complainant[3]. In that case, EPSO had refused to follow the Ombudsman's suggestion and to contact the other candidates, without however putting forward sufficiently clear reasons for its inability to do so[4].

23. In its opinion, EPSO did not advance any new arguments that could justify why a small extension of the testing period with the prior consent of the other candidates could not be envisaged. While the Ombudsman understands that EPSO has to deal with time-constraints and does its utmost to avoid unnecessary delays in order to achieve its commitment to reduce the overall length of competitions, he also considers that situations similar to that of the complainant are rather uncommon. Hence, he cannot see how allowing for a short extension of the testing period in exceptional cases could jeopardise EPSO's general planning of competitions. In the Ombudsman's view, EPSO could reduce any risk of not fulfilling its commitment regarding deadlines by being more proactive when planning future competitions. It could take into consideration the likelihood of having to extend slightly the testing period in order to accommodate the needs of pregnant candidates and allow for more flexibility in its initial planning.

24. In light of the foregoing, the Ombudsman considers that EPSO has not convincingly explained why it could not grant the complainant's request for a short extension of the time frame for conducting the tests and was unable to propose any measures that could accommodate the complainant's situation. It thus failed to demonstrate that it made all reasonable efforts to accommodate her special needs. This constitutes an instance of maladministration. The Ombudsman will make a critical remark. In the Ombudsman's view, the present case confirms that EPSO should continue to seek possible ways of accommodating the needs of candidates in an advanced state of pregnancy. Doing so would be in line with the principles of good administration and equal treatment.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following critical remark:

Contrary to principles of good administration, EPSO failed to explain why it could not grant the complainant's request for a short extension of the time frame for conducting the tests and to demonstrate that it made all reasonable efforts to accommodate her special needs.

The complainant and EPSO will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 9 January 2013

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[1] See, to that effect, Case C-344/04 International Air Transport Association [2006] ECR I-403, paragraph 95.

[2] See, for instance, Decision of the European Ombudsman on complaint 3278/2004/ELB against the European Parliament; Decision of the European Ombudsman closing his inquiry into complaint 1303/2007/(WP)(BEH)KM against the European Personnel Selection Office (EPSO) and Decision of the European Ombudsman closing his inquiry into complaint 1933/2010/BEH against the European Personnel Selection Office.

[3] Decision of the European Ombudsman closing his inquiry into complaint 1933/2010/BEH against the European Personnel Selection Office, paragraph 23.

[4] Idem, paragraph 34.