Background to the complaint

1. The complainant is a former employee of the European Investment Bank (EIB), where she held various posts as a temporary staff member until November 2016. The complainant suffers from a form of visual impairment and, in 2012, she was officially recognised as a ‘disabled worker’ by the Ministry of Labour and Employment in Luxembourg.

2. In November 2016, the complainant applied for a post of administrative assistant within the EIB^[1], a post which she was temporarily holding at the time.

3. The EIB informed the complainant that she was excluded from further participation in the selection procedure, as her score in the computer-based test was below the minimum required. The EIB stated that the complainant’s test results would remain valid until 31 December 2016 for all EIB vacancies and that, consequently, the complainant would not be able to retake the test before that date.

4. In January 2017, the complainant complained to the EIB about her exclusion from the selection procedure. She contended that she had not taken the test to which the EIB referred. She also argued that she was excluded from the selection procedure due to her disability, which constituted discriminatory treatment. She asked the EIB to readmit her to the selection procedure or, otherwise, to compensate her for the damage suffered.

5. In its reply, the EIB explained to the complainant that her application had been rejected due to her low score in the computer-based ’ability test’ which she had taken in April 2016, in the context of a previous selection procedure^[2]. These test results remained valid until 31 December 2016. The EIB stated that all the complainant’s previous applications for vacant posts within the EIB had been examined in compliance with the EIB staff selection policy and that other applicants had been considered more suitable. The EIB would thus not pay the complainant compensation.

6. The complainant turned to the EIB again, arguing that the test to which the EIB referred was part of a selection procedure in which no special care for applicants with disabilities had been taken. This meant that applicants with disabilities had effectively been excluded from the procedure.

7. The EIB replied that the complainant had taken the ability test at home and that she had not notified the EIB that she needed special adjustments.

8. Dissatisfied with this reply, the complainant turned to the Ombudsman in January 2018.

The inquiry

9. The Ombudsman opened an inquiry into the following aspects of the complaint:

1) the EIB was wrong to reject the complainant´s application in the November 2016 selection procedure based on the results of the test taken in April 2016 and without taking into account her disability;

2) since April 2016, the EIB has systematically and unfairly rejected the complainant´s applications for vacant posts, in all likelihood due to her disability.

10. In the course of the inquiry, the Ombudsman received the EIB´s reply on the complaint and the comments of the complainant on the EIB's reply.

On the EIB relying on the test taken in April 2016

Arguments made to the Ombudsman

11.  The complainant argued that the EIB should not have taken into account the test taken in April 2016 as this led to discrimination against applicants with disabilities. She added that the EIB set the deadline for applications for the November 2016 selection procedure just a few days before the expiry of the validity of the ability test results. The complainant had not been informed of this in due time. As she could not have known that she would be excluded from the selection procedure on that basis, she had resigned from her job as an interim employee with the EIB. She did so because she wanted to be immediately available should a vacancy for a more permanent position within the EIB arise, such as the one in question. The complainant thus reiterated her position that the EIB should either readmit her to the November 2016 selection procedure or pay her compensation.

12. The EIB stated that, as the complainant took the test at home without informing it of any need for special adjustments, the EIB had reasonably assumed that she had all the equipment required to take the test. According to the EIB, it always asks applicants to declare whether they have a disability. Had the complainant taken the test at the EIB´s premises, the EIB would have provided her with the appropriate equipment.

13. The EIB explained that, since 2008, ability tests, such as the one that the complainant took in April 2016, form a standard part of the second stage of its selection procedures for professional and managerial staff, as well as for administrative and support staff. Only applicants who have passed the first stage of the selection procedure (assessment of applications against the requirements of the post) are invited to take the ability test. The ability test has a predefined pass mark.

14. The EIB stated that the practice to retain test results for a defined period (one year), which has been in place since 2008, aims at reducing the administrative burden of testing unsuccessful applicants again. The results of the test that the complainant took in April 2016 were valid until the end of December 2016^[3] . As the complainant had failed that test, her application for the November 2016 selection procedure was rejected.

15. The EIB explained that previously it did not systematically inform applicants that the test results would remain valid for one year. As of May 2016, the EIB gives this information in the standard email sent to unsuccessful applicants.  

The Ombudsman's assessment

16. According to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)^[4], persons with disabilities have the right to equal opportunities for work^[5]. This means, among other things, that reasonable accommodation^[6] of their needs shall be ensured in staff selection procedures. By way of example, the Ombudsman has recommended that assistive technologies should, to the greatest extent possible, be made available to visually impaired persons, upon request, when they have to sit computer-based tests in the context of EU staff selection procedures^[7].

17. The complainant does not contest the EIB’s statement that she took the ability test at home. It was thus her responsibility to make sure that she had the necessary equipment or to otherwise inform the EIB of any difficulties due to her disability. As the complainant did not inform the EIB of any problems before taking the test, the circumstances for taking the test were not such that the tests results should be considered invalid.

18.  The EIB’s practice to retain the results of the ability tests for one year is reasonable. Although the complainant was not aware of this practice, there is nothing to indicate that the EIB has not applied this practice consistently. From a transparency perspective, the EIB could have done better at the time. However, this does not mean that the EIB was wrong to rely on the complainant’s test results from April 2016 in the context of the November 2016 selection procedure. 

19. The Ombudsman welcomes the fact that the EIB has since acknowledged the problem and improved the information provided to applicants who do not pass the ability test. In the context of the Ombudsman’s inquiry, the EIB has also expressed its regret for having failed to provide the complainant with the appropriate information earlier in 2016. The EIB now informs applicants, both when inviting them to the ability test and when giving the results of the test, that “the results will remain valid for a period of one year as from the day of testing, and for all EIB vacancies” and that applicants “will not be able to retake the test during that one year period”. This information is also available on the EIB´s website^[8].

20. While clearly unfortunate for the complainant, the fact that she appears to have left her job before she knew the outcome of the November 2016 selection procedure cannot be attributed to the EIB. The complainant has confirmed to the Ombudsman´s inquiry team that working as an interim employee at the EIB did not impede her from applying for other posts within the EIB.

21. On the basis of the above, the Ombudsman finds no maladministration by the EIB in relation to this aspect of the complaint.

On the allegedly systematic rejection of the complainant´s applications because of her disability

Arguments made to the Ombudsman

22. The complainant argues that, on the pretext of her low score in the ability test taken in April 2016, the EIB has since then systematically rejected her job applications, without a case by case assessment of her applications. The fact that the complainant previously worked for the EIB shows that she is suitable to work there. The EIB is therefore likely to have rejected her job applications due to her disability.

23.  The EIB stated that it treated the complainant´s applications in line with the EIB staff selection rules and that there was no discrimination against her. During the period April to end December 2016, the complainant’s job applications were rejected because she had failed the ability test in April 2016. From January 2017 onwards, the complainant´s job applications have been rejected following a case by case assessment.

The Ombudsman's assessment

24.  The United Nations Committee on the Rights of Persons with Disabilities has recommended that the EU “increase employment of persons with disabilities” in all EU institutions^[9]. The EU administration has thus a strong mandate as an employer to ensure inclusion of persons with disabilities. This involves preventing discrimination on the basis of disability and ensuring equal access to job opportunities within the EU administration.

25. The fact that the complainant has made a number of unsuccessful job applications to the EIB does not, in itself, constitute evidence of her being unfairly rejected or discriminated against. There is nothing in the information provided to the Ombudsman that indicates that the EIB relied on the complainant’s test results from April 2016 when rejecting job applications made by her after the expiry of the validity of those test results (that is, after 31 December 2016). Nor has the complainant put forward any argument or evidence to suggest that the EIB rejected her applications because of her disability. Although the complainant previously worked for the EIB, other applicants may well be considered better suited for jobs subsequently advertised.

26. It is understandable that the complainant is disappointed with not having been selected for a job in the EIB. However, on the basis of the material made available during the inquiry, the Ombudsman has found no maladministration by the EIB. The complainant’s request for compensation can thus not be upheld.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration by the European Investment Bank.

The complainant and the European Investment Bank will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 18/03/2019

 

[1] Selection procedure 103669/2016, hereinafter `November 2016 selection procedure´.

[2] Selection procedure 102976/2016, hereinafter `April 2016 selection procedure´.

[3] Due to a change of test service provider, all tests taken in 2016 remained valid until the end of 2016 only, and not for a full calendar year.

[4] Adopted on 13 December 2006 during the sixty-first session of the General Assembly by resolution A/RES/61/106 and approved on behalf of the EU by Council Decision 2010/48/EC of 26 November 2009 (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32010D0048). The full text of the Convention is available at: https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html

[5] Article 25 of the UNCRPD.

[6] The UNCRPD defines ‘reasonable accommodation’ as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.

[7] See Recommendations of the European Ombudsman in the joint inquiry into complaints 1337/2017/EA and 1338/2017/EA on the accessibility for visually impaired candidates of selection procedures organised by the European Personnel Selection Office, available at: https://www.ombudsman.europa.eu/en/recommendation/en/107637

“[8] Under “How to apply” section (http://www.eib.org/en/about/jobs/how-to-apply/index.htm).

[9] See point 89 of the Concluding observations regarding the EU's implementation of the Convention on the Rights of Persons with Disabilities, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/226/55/PDF/G1522655.pdf?OpenElement