Background to the complaint

1. The complainant took part in a selection  procedure organised by the European Personnel Selection Office (EPSO) for the recruitment of assistants in the field of Information, communication and technology (ICT) - EPSO/AST/151/22[1]. The selection procedure included reasoning tests which were conducted by remote testing[2]. EPSO uses a contractor to host and oversee these tests.

2. The complainant was due to sit the tests on 16 May 2023 but experienced problems launching the tests. He contacted the ‘proctor’[3] monitoring the tests, who informed him that messages he sent in the chat function were not sent in a timely manner due to connection issues. The proctor thus asked the complainant to exit the application and to try to relaunch it. The complainant did so four times, following the instructions of several proctors[4]. In the end, the complainant was not able to take the tests.

3. That day, the complainant wrote to EPSO to complain about not being able to take the tests. EPSO replied the following day, and asked him to provide documents “to substantiate [his] attempts to solve the issue (such as copy of the chat discussion with the technical support, or the ticket number received from the technical support)”. It added that, in order to process the complaint, it would need “a ticket number issued by [the contractor] on the scheduled day and time of [the] test”.

4. The complainant then contacted the contractor and received a ‘case number’, which he sent to EPSO. However, EPSO informed the complainant that this ‘case number’ was not equivalent to a ‘ticket number’[5] issued by the ‘technical support’[6] during the test. As a consequence, EPSO dismissed the complaint as lacking supporting evidence, on the basis of the instructions for remote testing.

5. Dissatisfied with how EPSO handled his complaint, the complainant turned to the Ombudsman.

The inquiry

6. The Ombudsman opened an inquiry into the complaint, and notably into how EPSO handled the complaint. In the course of the inquiry, the Ombudsman received EPSO’s reply and the subsequent comments of the complainant.

7. In parallel, the Ombudsman also conducted an own-initiative inquiry into the use by EPSO of remote testing[7]. The findings in that inquiry are relevant for this case.

Arguments presented to the Ombudsman

8. The complainant did not understand why EPSO had dismissed his complaint. In his view, he had raised his problems with different proctors during the test, and they confirmed that they could see the issues in the technical logs and that this would be recorded. In addition, he had contacted EPSO right after finishing his test. The complainant also contended that he could not provide a transcript of the chat with the proctors because, in accordance with the applicable rules, he did not have a mobile phone at hand or another means to take a record of the chat.  

9. In its reply to the Ombudsman, EPSO explained that a ‘case number’ is an automatic tracking number given to anybody that sends an email to the contractor, whereas a ‘ticket number’ is given by the technical support at the time of the test. When a candidate contacts the technical support through the online chat, they may also save a transcript of the chat. EPSO stated that it would accept either a ‘ticket number’ or the transcript of the chat as proof that the issue had been raised with its contractor at the time of the test. As the complainant did not have either, EPSO could not deal with his complaint.

The Ombudsman's assessment

10. EPSO dismissed the complaint as it deemed that the complainant did not comply with the instructions for remote testing in attempting to resolve the technical issues he encountered. As set out in the context of previous complaint-based inquires, as well as the own-initiative inquiry referred to above, the Ombudsman considers that these instructions lack clarity and that they cannot be interpreted as saying that contacting the technical support is the only valid way to report a technical problem.[8]

11. The Notice of Competition in this case 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...”

12. 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[9]
• 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[10] (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.”

13. In this case, the complainant was in contact with four different proctors, who confirmed they could see in the technical logs that there were technical issues, and that this was recorded. It therefore appears that, by alerting the proctors, the complainant followed the Notice of Competition as well as the instructions.

14. EPSO stated that candidates were expected to prove that they tried to troubleshoot the problem by providing either a ticket number from the technical support or a transcript of the chat with the technical support. However, 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. Contacting the technical support was thus not the only option. In this case, the complainant used the other option, which was to alert the proctors who confirmed that the issue was recorded in the technical logs. The complainant also provided a reasonable explanation as to why he could not provide any supporting documentation.   

15. The Ombudsman therefore takes the view that EPSO adopted an unjustified restrictive approach in this case. As demonstrated in this and previous complaints submitted to the Ombudsman[11], this restrictive approach means that, even where candidates clearly followed the instructions and asked the incident to be recorded by the proctor, EPSO would not look into the complaints as they could not provide the precise evidence required by EPSO. It is unreasonable for EPSO to refer to and rely on such a restrictive reading of the instructions

16. Moreover, the Ombudsman stressed in her decision closing her own-initiative inquiry regarding EPSO’s remote testing that it is important that EPSO demonstrates flexibility in investigating complaints. This is particularly relevant in situations where candidates have alerted the proctor about technical issues during the exam and received information that the issues had been recorded in the technical logs. In this case, the complainant stated that successive proctors told him that they could see in the logs that he had encountered technical issues. As such, it would have been reasonable for EPSO to check the logs, or ask its contractor to do so. As EPSO explained to the Ombudsman during a meeting concerning remote testing, in case investigations into a complaint are not conclusive, EPSO would “examine any type of evidence and give candidates the benefit of the doubt” [12]. Yet, in this case, it appears that EPSO did not do so.

17. In light of the above, the Ombudsman concludes that there was maladministration by EPSO in dismissing the complaint.

18. Had EPSO properly investigated the complaint in a timely manner, it could have been possible for the complainant to re-sit the tests. As such, by failing to do so, EPSO deprived the complainant of the opportunity to participate in the selection procedure. However, the Ombudsman previously acknowledged the practical challenges of providing appropriate redress in cases where the selection procedure has been finalised[13]. If it is not possible to reintegrate a candidate into the selection procedure in question, the EU Court has 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 the EU body should enter into dialogue with the complainant with a view to agreeing on another fair solution.

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

Conclusion

On the basis of the inquiry into this complaint, 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.

EPSO and the complainant 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://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.CA.2022.076.01.0032.01.ENG&toc=OJ%3AC%3A2022%3A076A%3ATOC

[2] Tests are taken by candidates remotely, through a dedicated application

[3] 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.

[4] When candidates connect to the testing application, they are put in a virtual waiting queue before they get connected to a proctor. When candidates exit the application and then connect again, they may be connected with a different proctor.

[5] An eight digit number that EPSO stated corresponds to a written record of an incident.

[6] The online technical support chat is a pop up chat box. It is possible to save a transcript of the chat at any time.

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

[8] See also, for example, case 413/2023/MAG https://www.ombudsman.europa.eu/en/case/en/63469

[9] Emphasis used by EPSO in the instructions

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

[11] See case 413/2023/MAG https://www.ombudsman.europa.eu/en/case/en/63469

[12] In the context of inquiry OI/1/2023/VS, see report on the meeting held on Thursday 28 September 2023, point 6 The requirement to provide evidence of troubleshooting.

[13] See 1735/2023/MAG https://www.ombudsman.europa.eu/en/case/en/64796  and 413/2023/MAG https://www.ombudsman.europa.eu/en/case/en/63469