Background to the complaint

1. The complainant was a staff member of the European Parliament. In 2021, he took part in an internal selection procedure (‘internal competition’). In the application form, he replied ‘‘yes’’ to the question asking if the candidate has a disability. He also specified his disability in the subsequent field, which asked for details ‘‘in order to allow the administration if possible to take the necessary measures’’.

2. The internal competition involved a three-hour written test, which was performed remotely on 28 May 2021, and in-person oral tests (thirty-minute interview and forty-five-minute group discussion) on 21 October 2021.

3. On 4 May 2021, the relevant section in the Parliament wrote to the Parliament’s ‘medical service’ saying that, for the internal competition, there were several candidates who would need special arrangements during their written tests. It specified that the test would be three hours long and that all candidates concerned had been asked to send in a medical certificate. With regard to the complainant’s disability, the Parliament asked if his disability could prevent him from taking the written test for three hours and if so, what measures should be put in place.

4. On 6 May 2021, the medical service replied, stating that, if the complainant had appropriate ergonomic equipment for taking the test, it would be justified to grant him 30 minutes additional time to complete the assignment.

5. On 19 May 2021, the Parliament informed the complainant that he would be granted 30 minutes additional time for the written test.

6. The complainant replied, asking for additional measures to be granted to take account of his needs, notably the possibility to stand and move during the test. On 20 May 2021, the Parliament informed the medical service about this request.

7. In reply, the medical service stated that, in addition to the additional time and appropriate ergonomic equipment, the complainant should also be allowed to interrupt his test in order to exercise or stretch. The medical service suggested that the Parliament could designate a physical space where the complainant could do stretches, such as in front of the camera running during the remote written tests.  

8. On the next day, the Parliament replied to the complainant saying that the complainant could do stretches he deemed necessary but only in a fixed area and in front of his camera and without moving from one room to another.

9. On 28 September 2021, the Parliament informed the complainant that he was invited to the oral tests, which would take place on 21 October 2021 at 14:20 (interview) and on 21 October at 17:30 (group discussion). The e-mail also said that this was the only possible date and time for the tests.

10. On 15 October 2021, the Parliament informed the complainant that, for organisational reasons, the group discussion test was rescheduled to 21 October 2021 at 18:00. The e-mail also said that this was the only possible date and time for the test.

11. Following the end of the internal competition, the Parliament published the list of suitable candidates. The complainant was not included on the list as his result was under the necessary minimum threshold by 2.5 points.

12. On 1 February 2022, the complainant filed an administrative complaint against the Parliament’s decision not to include him on the list of suitable candidates. He argued that the Parliament had failed to provide him with adequate measures to accommodate his needs (‘reasonable accommodation’), which constituted discrimination. Among other points, he argued that he was provided with inadequate reasonable accommodation measures for his disability during the first assessment (written test) and that he was provided no reasonable accommodation measures at all during the subsequent two assessments (interview and group discussion). This meant he was at a disadvantage compared to other candidates. The complainant requested to be included in the list of suitable candidates.

13. On 1 June 2022, the Parliament rejected the administrative complaint. The Parliament pointed out  that, in his application form, the complainant had only specified his disability without further specifying any arrangements needed. Furthermore, the complainant accepted the invitation to the oral tests without indicating that he would also require reasonable accommodation for those tests. The Parliament concluded that it had made all possible efforts in response to the complainant’s request for reasonable accommodation at the written test stage. The Parliament also said that the complainant had the possibility to indicate if he had considered the measures granted to be insufficient.

14. In January 2023, dissatisfied with the Parliament’s reply, the complainant turned to the Ombudsman.

The inquiry

15. The Ombudsman opened an inquiry and asked the Parliament to reply to the complaint. In the course of the inquiry, the Ombudsman received the reply of the Parliament and, subsequently, the comments of the complainant in response to the Parliament's reply. The Ombudsman inquiry team also inspected the Parliament’s file on this case.

Arguments

By the Parliament

16. The Parliament said that, when the complainant submitted his application for the internal competition, he indicated in the ‘Wishes’ section the name of his condition without giving further details about the reasonable accommodation required due to his disability. He did so even though the Guide for candidates in internal competitions, which was an annex to the competition notice, explicitly invited candidates with a disability to specify any disability in their application form and to provide any relevant information so that the administration can take appropriate, reasonable measures, where possible.[1]

17. On 20 May 2021, during an information session on the competition, the complainant orally expressed his request for reasonable accommodation and sent an e-mail to this end. The Parliament considered that, in following the recommendations of the medical service, it had enabled the complainant to take the written test under conditions in line with the duty of care and the principles of non-discrimination and equal opportunities for all candidates.

18. The Parliament added that it had not proactively consulted the medical service regarding the provision of reasonable accommodation in the framework of the oral tests, since the complainant had not specified the need for reasonable accommodation in the oral tests.

19. The Parliament said that the complainant was not explicitly and proactively informed that no reasonable accommodation had been foreseen for his oral tests, as these tests were not scheduled to last for a long duration, nor was he informed that he had the right to ask the selection board for reasonable accommodation on the spot during the interview. However, it was reasonable to assume that the complainant could have informed the selection board of any inconvenience he might have been experiencing during the oral tests, and that the selection board would have tried to accommodate this.

By the complainant

20. The complainant said that, around the same time as the internal competition procedure was taking place, the Parliament recognised his disability. His application for recognition of his disability contained, as a supporting document, an assessment of the nature of his disability and provided an indication of what reasonable accommodation measures might be required to accommodate his needs. The complainant also said that the Parliament did not dispute or express reservations about his diagnosis.

21. The complainant argued that the Parliament places the responsibility for defining reasonable accommodation entirely on candidates, at odds with the provisions of the UN Convention on the Rights of Persons with Disabilities (CRPD)[2]. Instead of carrying out a systematic and organised process to determine reasonable accommodation for all candidates with disabilities, what took place was ad hoc, subjective and subject to negotiations. Providing reasonable accommodation for his needs seemed to be treated as a privilege rather than a right.

22. The complainant said that he had contested in writing the proposal to allocate an additional 30 minutes for the written test as inadequate to address his needs. The Parliament made no attempt to engage with him, and he had consequently raised the issue at an information session in front of other candidates as a last resort.

23. The complainant pointed out that the Parliament determined that no reasonable accommodation measures were required for the oral tests without consulting its medical service.

24. The complainant expressed concern about the Parliament’s implication that he should have raised the need for reasonable accommodation spontaneously during the oral tests. The example provided by the Parliament in that context showed a complete lack of awareness about diversity and inclusion and the barriers faced by persons with disabilities. He stated that this raised more general concerns about how the Parliament deals with staff and candidates with disabilities.

25. The complainant concluded that the Parliament had failed in its duty of care and had violated the principles of non-discrimination and equal opportunities.

The Ombudsman's assessment

26. The EU administration, as an equal opportunities employer, must make every effort to avoid discrimination, promote diversity and ensure equal access to job opportunities. The EU is a party to the CRPD, and the EU administration should lead by example in complying with its provisions.[3]

27. To this end, the Parliament’s Guide for candidates in internal competitions has a provision enabling candidates to declare any disability, which also deals with reasonable accommodation.[4] While such a provision is standard in normal selection procedures, it is reasonable that the Parliament also requires candidates in internal competitions to declare their disability, since the staff dealing with the practical organisation of such competitions may not have access to the personnel files of staff members.

28. According to the UN Committee on the Rights of Persons with Disabilities, in determining reasonable accommodation needs, an (prospective) employer should enter into dialogue with the individual with a disability.[5]

29. There is no dispute that the complainant duly declared his disability and provided a medical certificate, as required. Following his request for reasonable accommodation, the Parliament asked its medical service what measures would be adequate for the written tests. After the complainant asked for additional measures, it again consulted its medical service and offered additional measures. While the Parliament could have been more proactive in ensuring the provision of appropriate reasonable accommodation, it nonetheless engaged in dialogue on the measures and demonstrated flexibility in providing additional measures. It is not the role of the Ombudsman to determine what detailed measures were appropriate.

30. However, after the complainant successfully passed the written tests and was invited for the oral tests, the Parliament did not contact or enter into dialogue with the complainant to determine his needs for those tests.

31. In its reply, the Parliament argued that, given the nature of the oral tests (short duration) and the type of measures that had been deemed necessary for the written tests, it considered that no reasonable accommodation was necessary. It also claimed that, if he required such measures, the complainant could have requested this during the tests. It also implied that, by not listing in his application the measures he needed to accommodate his needs, the complainant bore responsibility for the failure to provide comprehensive reasonable accommodation. In doing so, it referred to the Guide, which states: “If necessary, you should also include in your application details of any special arrangements that you think are needed to make it easier for you to take the tests.” [6]

32. The UN Committee on the Rights of Persons with Disabilities has clarified[7] that the duty to provide reasonable accommodation is not limited to situations in which the person with a disability has asked for reasonable accommodation. The duty also applies in situations where a potential ‘duty bearer’ (for example, an employer) should have realised that the person in question had a disability that might require measures to accommodate their needs.

33. Given the complainant required, and the Parliament provided, measures to accommodate his disability in the written tests, it was reasonable to assume that he may have also required measures for the oral tests or, at the very least, to proactively check this, regardless of the different nature of the oral tests. Only through dialogue with the complainant and the experts in the medical service could this have been determined. The general possibility offered to all candidates to ask for certain measures in the context of an interview (such as requesting a break or water) is not equivalent to providing candidates with disabilities with reasonable accommodation.

34. As such, the failure to check and consult with the complainant whether any measures were needed for the oral test constitutes maladministration. 

35. In order to provide redress for this matter, the Parliament would first have to contact its medical service to determine if the complainant would have required reasonable accommodation measures for the oral test. The Ombudsman does not have the expertise to determine this.

36. If the medical service were to deem that the complainant had required reasonable accommodation, this would then imply that the complainant had not been afforded an equal opportunity vis-a-vis the other candidates in the oral tests, and that he was at a disadvantage due to his disability. In that scenario, the Ombudsman acknowledges the practical challenges of providing appropriate redress, given the selection procedure has long since concluded. The EU Court has previously found[8] that this could be done by organising a separate, individual selection procedure for the complainant at a similar stage (oral test) to the procedure at issue in this case. In this scenario, the Parliament should discuss with the complainant what measures are necessary to accommodate his needs and, if necessary, seek advice from the medical service and/or disability experts. If the Parliament considers that this is not possible, it should enter into dialogue with the complainant with a view to agreeing on another fair solution, as the Court has also previously suggested[9].

37. Given the complexity of this matter, the Ombudsman considers that it would not be practical to make a prescriptive corresponding recommendation. However, she urges the Parliament to enter into dialogue with the complainant with a view to finding an appropriate and fair solution.

38. Furthermore, in the course of the inquiry, the Ombudsman inquiry team reviewed the Parliament’s Code of Good Practice for the Employment of People with Disabilities[10]. The Ombudsman notes that this Code was adopted in 2005. Given that this predates UN CRPD, and the resulting rules and practices that have stemmed from it, the Ombudsman considers that the Parliament should review its Code and ensure it is in line with the UN CRPD and relevant guidance. The code should also ensure that reasonable accommodation for candidates with a disability is provided at every step of selection procedures. The Ombudsman will make a suggestion for improvement to that effect.

Conclusion

Based on the inquiry, the Ombudsman closes the case with the following finding:

There was maladministration by the European Parliament in failing to verify with the complainant and its medical service whether the complainant required reasonable accommodation measures for the oral tests.

Suggestions

1. The European Parliament should  enter into dialogue with the complainant with a view to finding an appropriate and fair solution.

2. The European Parliament should review its Code of Good Practice for the Employment of People with Disabilities and ensure it is up-to-date and in line with the UN Convention on the Rights of Persons with Disabilities and current rules and practices stemming from the Convention. The revised code should ensure that reasonable accommodation is provided at every step of selection procedures. 

 

Emily O'Reilly
European Ombudsman

Strasbourg, 26/06/2024

[1] In accordance with the decision of the Bureau of the Parliament of 22 June 2005 on a Code of Good Practice for the Employment of People with Disabilities which sets out that: “Application forms will request candidates with disabilities to detail the accomodation they require to enable them to participate in the tests with other candidates on an equal basis with other candidates and every effort will be made to satisfy all reasonable requests.”

[2] Article 27 of the CRPD : https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/convention-on-the-rights-of-persons-with-disabilities-2.html

[3] See also the EU Strategy for the Rights of Persons with Disabilities, 2021-2030 https://ec.europa.eu/social/main.jsp?catId=1484&langId=en

[4] Article 3.1 of the Guide for candidates in internal competitions

[5] See General Comment No. 6 (2018) on equality and non-discrimination, accessible at https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsnbHatvuFkZ%2Bt93Y3D%2Baa2qtJucAYDOCLUtyUf%2BrfiOZckKbzS%2BBsQ%2BHx1IyvGh6ORVZnM4LEiy7ws5V4MM8VC4khDIZJSuxotVqfulsdtPv

[6] Article 3.1 of the Guide for candidates in internal competitions

[7] See General Comment No. 6 (2018) on equality and non-discrimination

[8] Judgment of the Court of Justice of 8 June 2006, Pérez-Díaz v Commission, T-156/03, https://curia.europa.eu/juris/document/document.jsf?text=&docid=55154&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=2655257, paras. 62-64.

See also Judgment of the Court of Justice of 8 June 2006, Bachotet v Commission, T-400/03, https://curia.europa.eu/juris/document/document.jsf?text=&docid=55155&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=3438541, paras. 40-42.

[9] Ibid.

[10] https://www.europarl.europa.eu/pdf/disability/code_good_practice_en.pdf