Background to the complaint

1. The complainant took part in selection procedure EPSO/AST/155/22[1] organised by the European Personnel Selection Office (EPSO). As part of the selection procedure, the complainant took remotely-proctored[2] ‘reasoning tests’[3] monitored by an external contractor of EPSO. On her first attempt, the complainant had to interrupt the test due to a medical condition. EPSO agreed to grant her the opportunity to re-sit the tests

2. On 10 February 2023, the complainant tried to re-take the tests. However, she was not able to launch the tests. The application displayed an error message instructing her to call the ‘candidate care team’ of the contractor. The complainant exchanged in writing and orally with the ‘proctor’[4] who first told her that she had not connected at the right time. The proctor then said that she should exit the application and call the ‘candidate care team’ using the phone number displayed by the application. The proctor also said that they would write a report of the incident and provide it to EPSO. The complainant asked the proctor to confirm this information in writing in the application chat[5] and exit the application.

3. The same day, the complainant reported the matter and received an answer from EPSO. EPSO stated that, in line with the instructions[6] for remote testing, it required a ‘ticket number’[7] issued by the technical support of the contractor[8] in order to access the relevant technical files and process the complaint. In addition, EPSO said that, according to the instructions for remote testing, where candidates do not contact the technical support, it is not possible to organise for candidates to subsequently re-sit the tests.

4.  The complainant informed EPSO that she did not have a ticket number. The complainant explained that she had followed the proctor’s instructions, and stated that the proctor said that they would send a report to EPSO. She provided photographic evidence of her chat with the proctor in which the proctor confirmed this.

5. EPSO and the complainant exchanged further emails on the matter but EPSO maintained its position. Dissatisfied, the complainant turned to the Ombudsman.

The inquiry

6. The Ombudsman opened an inquiry into the complaint. In the course of the inquiry, the Ombudsman received the reply of EPSO on the Ombudsman’s request for clarifications concerning certain information given to the complainant and concerning how EPSO handled the complaint. The Ombudsman also received the complainant’s comments on the reply.

7. In parallel, the Ombudsman also carried out an own-initiative inquiry[9] concerning the use of remote testing by EPSO. The Ombudsman’s findings and suggestions for improvement to EPSO following the own-initiative inquiry are relevant in this case.

Arguments presented to the Ombudsman

8. The complainant took the view that EPSO’s position was unfair. EPSO should not have expected her not to follow the proctor’s instruction, namely to leave the application and contact the technical helpdesk by phone. In addition, the complainant pointed out that, although she did not have a ticket number, the proctor had stated that they would send a written report of the incident to EPSO. The complainant asked to access this report but EPSO did not reply to this.

9. In its reply to the Ombudsman, EPSO explained that a ticket number was a written record of an incident that enables it to access the relevant technical files and is therefore the only way differentiate genuine and non-genuine complaints. Consequently, EPSO requires a ticket number, as set out in the instructions on complaints about technical issues. EPSO stated that the complainant had provided evidence of her chat with the proctor (directly in the application) and not a chat with the technical support. EPSO also stated that it had asked its contractor about the information given by the proctor. EPSO recognised that a mistake had been made but that in any case, “the proctor’s message did not absolve the candidate from following the instructions (that she received) and contacting the [contractor’s] technical support via the chat link”.

The Ombudsman's assessment

10. EPSO explained that, to ensure the equal treatment of candidates and a fair approach to processing of complaints, it must take a strict approach in assessing whether candidates followed the instructions.

11. The Ombudsman appreciates that certain procedural requirements are necessary to guarantee the objective and equal treatment of candidates as well as the efficiency of EPSO’s work. That being said, the objective of fairness and equal treatment can be achieved only if these procedural requirements are clear, which was not the case here.

12. When the complainant turned to EPSO with her technical problem, EPSO referred to the instructions[10] sent to candidates, in particular the part stating that “[c]andidates failing to provide supporting documentation (a Help Desk ticket number) will not be assisted”. EPSO took the view that these instructions further developed the Notice of Competition and that it was the candidates’ duty to follow them.

13. It is true that candidates may be expected to take into account EPSO’s instructions, read together with the Notice of Competition and its annexes[11]. However, the instructions should be clear and be non-ambiguous when read against the Notice, which remains the binding legal framework to a selection procedure. It should also be recalled that candidates did not have access to the notice and the instructions during the tests, but were expected to memorise all the details and apply the instructions correctly in a very stressful situation.  In this case, the Notice of Competition[12]  set out that:

· “If the problem occurs at a test centre or during remote testing,

• please alert the invigilators immediately so that a solution can be investigated. In any case, ask them to record your complaint in writing; and
• contact EPSO no later than 3 calendar days after your tests via the EPSO website...

· For problems occurring outside test centres (e.g. ...technical issues during remote testing before you are connected to an invigilator), please follow the instructions in your EPSO account and on EPSO’s website and contact EPSO immediately via the EPSO website...”

14. The instructions sent to candidates said:

“Should an issue occur, please ensure that:

• during the exam you alert the Proctor via the Live Proctor feature (in the exam) or [the contractors] technical support via the chat link to resolve the issue and request that the incident be logged in writing AND[13]
• you notify EPSO within 3 calendar days after the test in writing via the online contact form with a brief description of the problem encountered.

The obligation to inform EPSO applies in all cases (including when the contractor assures any follow-up).

If you were unable to launch your exam or if you had technical issues during your exam, you should also attach supporting documentation to substantiate your attempts to resolve the issue (such as copy of the chat discussion with the technical support, or the ticket number received from the technical support). You should provide EPSO with this supporting documentation within 3 days from the day you took your test. Any requests not escalated to the [the contractor’s] technical support via this link at the scheduled time of the exam, requests lacking relevant supporting documentation or requests submitted after the deadline will be declined.

Please note that complaints linked to the issues identified below will not be grounds for retest:

· [...]

· failing to contact [the contractor] exclusively via the chat link[14] (see section 5). Using any other channel like a toll-free number, a contact form on [the contractor’s] website etc… will not be acceptable means of escalation. Candidates failing to provide supporting documentation (a Help Desk ticket number) will not be assisted. Please be aware that when you click on the chat link, you will first be directed to an automated response bot which will then connect you to a live support agent. Candidates should not hang up until assistance is received and a ticket number provided.”

15. The above demonstrates that the Notice of Competition and, in particular, the instructions lack clarity and are inconsistent. The Ombudsman drew attention to this in her own-initiative inquiry on the use of remote testing by EPSO.

16. It is clear from the Notice and the instructions that, in case of a technical issue, the candidate should inform the proctor or the technical support. Candidates must also provide evidence of their attempts to solve the issue. They may do so by providing supporting documentation “such as” a ticket number or a transcript of the chat with the technical support, but the wording ‘such as’ implies that this is not the only means of doing so. Given that the troubleshooting can be done either through the proctor or the technical support, it appears clear that acceptable evidence as proof of such troubleshooting cannot be limited to evidence of contact with the technical support. It is thus unreasonable for EPSO to refer to and rely on only one sentence in the instructions (“Candidates failing to provide supporting documentation (a Help Desk ticket number) will not be assisted.”). Doing so is selective and not in line with the text of the Notice of Competition and the preceding text of the instructions.

17.  In this case, the complainant signalled the technical issue to the proctor and asked that they record it in writing. The complainant provided proof of this exchange with the proctor (photos of the chat) which clearly demonstrates that she tried to solve the issues at the scheduled time of the test through the proctor. Based on the formulation of the Notice as well as the instructions, this must be considered a reasonable line of action. Yet, by applying its narrow reading of the instructions, EPSO rejected the complainant’s claim, which ultimately meant that the complainant was deprived of the possibility to seek redress.

18. The Ombudsman takes issue with EPSO’s view that “the proctor’s message did not absolve the candidate from following the instructions (that she received)”.  As set out above, the complainant followed the instructions by alerting the proctor. The proctor told the complainant to call the candidate care team by phone. Thus, the proctor advised the complainant to act in a way that was not in line with the instructions. In the course of this inquiry, EPSO confirmed that the proctor gave the complainant inaccurate information.

19. The Ombudsman has consistently found that when an EU body uses a contractor to carry out some of its tasks, it should be particularly vigilant in ensuring that these tasks are carried out properly.[15] Therefore, not only should EPSO have considered that the complainant acted in accordance with the instructions, it should also have taken responsibility for the misleading information that the proctor gave to the complainant.

20. Moreover, the Ombudsman notes that when the complainant contacted EPSO the first time, EPSO’s staff asked for supporting evidence and stated that such evidence could be either a ticket number from the technical support or the transcript of the chat with the proctor that the complainant had mentioned in her complaint to EPSO. However, subsequently, EPSO stated that the only acceptable evidence was either a ticket number or a transcript of the chat, not with the proctor, but with the technical support. Similarly, in its reply to this inquiry, EPSO stated that “[t]he chat transcript, which the candidate provided, indicates an exchange with the Proctor invigilating the exam, not with helpdesk”. EPSO thus provided the complainant with contradictory information and ultimately took an unreasonable decision on the matter.

21.  The Ombudsman’s own-initiative inquiry previously found that EPSO’s staff was not always consistent in implementing the instructions and processing complaints. Consequently, in the context of that inquiry, the Ombudsman made a suggestion that EPSO ensure that its staff are properly trained to ensure the consistent implementation of its rules on complaint handling.

22. In light of the above, the Ombudsman finds that EPSO’s decision to dismiss the complainant’s complaint was unjustified and constituted maladministration.

23. However, the Ombudsman acknowledges the practical challenges of providing appropriate redress in this case where the selection procedure has been finalised.

24. If it is not possible to reintegrate a candidate into the selection procedure in question, the EU Court has previously found in similar cases that redress could be provided by organising a separate, individual selection procedure for the complainant at a similar stage of a selection procedure as that where the problem occurred. If that is not possible, the Courts suggested that the EU body should enter into dialogue with the complainant with a view to agreeing on another fair solution.[16]

25. Against this background, the Ombudsman considers that it would not be feasible to make a prescriptive corresponding recommendation. However, she makes a suggestion to EPSO to enter into dialogue with the complainant with a view to finding an appropriate and fair solution.

Conclusion

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

There was maladministration by EPSO in how it handled the complaint about technical issues experienced by a candidate in remote tests.

The complainant and EPSO will be informed of this decision.

Suggestion

EPSO should enter into dialogue with the complainant with a view to finding an appropriate and fair solution.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 08/07/2024

 

[1] https://eu-careers.europa.eu/en/job-opportunities/assistants-field-operational-security

[2] https://eu-careers.europa.eu/en/help/faq/9177

[3] The reasoning tests consist in verbal, numerical and abstract reasoning tests.

[4] Proctors are employees of EPSO’s contractor, who are in charge of monitoring the tests and providing assistance to candidates that experience issues during the tests.

[5] A dedicated feature available in the test application, enabling candidates to chat with the proctor monitoring their tests.

[6] The instructions set out details about remote testing and contain a section about reporting technical issues. They are shared with the candidates ahead of the test but they are not available to the candidates during the test itself.

[7] A written record of an incident issued by the technical support.

[8] Candidates may contact the helpdesk by using a chat available on the contractor’s website.

[9] OI/1/2023/VS: https://www.ombudsman.europa.eu/en/case/en/63317

[10] https://europa.eu/epso/application/CotoFiles/file/CBT%20instructions/Instructions%20for%20RP%20MCQ%20EN%20-%20updated%2001122022.pdf

[11] F-121/05, De Meerleer v Commission paragraph 81 https://curia.europa.eu/juris/document/document.jsf?text=&docid=60975&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=1291340

[12] Section 4.1 of Annex IV to the Notice of Competition https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.CA.2022.437.01.0001.01.ENG&toc=OJ%3AC%3A2022%3A437A%3ATOC

[13] Emphasis used by EPSO in the instructions

[14] Hyperlink provided by EPSO in the instructions https://ehelp.prometric.com/proproctor/s/?language=en_US

[15] See Decision in case 1646/2017/MMO https://www.ombudsman.europa.eu/en/case/en/50897 and Decision in case 1913/2020/MMO https://www.ombudsman.europa.eu/en/case/en/58118

[16] Ibid.