Background to the complaint

1. On 13 August 2013, the European Commission invited the complainant to attend an interview in Brussels on 13 September 2013 with a view to filling a vacant post. The complainant was also asked to undergo a medical examination that same day.

2. Before travelling from city X to Brussels, the complainant asked the Commission whether she was entitled to the reimbursement of travel expenses of a babysitter, given that she had to take care of a four month old baby whom she was breast feeding.

3. The Commission replied on 21 August 2013 that only the travel expenses of the complainant would be reimbursed.

4. On the same day, the complainant referred the Commission to the European Ombudsman's decision in case 1303/2007/KM[1]. She also referred to an acquaintance who had allegedly been in the same situation as her and had been refunded the travel expenses of a babysitter[2].

5. The Commission replied on 2 September 2013 that it had taken into consideration the Ombudsman's decision, EPSO's rules on the reimbursement of travel expenses along with the Commission's rules governing the same matter, as well as the personal factors the complainant mentioned in her correspondence and the timing of the interview. Nevertheless, the Commission maintained the position that it would not cover the expenses in question.

6. After the complainant's interview had taken place, she asked the Commission to reimburse the travel expenses of her husband, who had joined her in order to take care of her baby. However, her request was rejected.

7. On 30 June 2014, the complainant contacted the Ombudsman.

8. The Ombudsman opened an inquiry into (i) the complainant’s allegation that by failing to reimburse the full travel expenses of her husband, the Commission discriminated against her; and (ii) her claim that the Commission should reimburse the complainant the entire travel costs incurred by her husband (EUR 488.06)[3].

Reimbursement of the full travel expenses of her husband

The Ombudsman's proposal for a solution

9. When proposing the solution, the Ombudsman took into account the arguments and opinions put forward by the parties.

10. The Ombudsman noted that the Commission, in its reply in the course of her inquiry, had acknowledged the complainant’s special situation and had stated that special arrangements could have been made to handle the situation properly. It stated that the interview could have been held by videoconference or could have been "scheduled at a more appropriate time, in accordance to the candidate’s wishes". The Commission also stated that it could have made a separate room available for breastfeeding before and/or after the interview. The Ombudsman noted that none of these solutions was actually offered to the complainant when she informed the Commission of her situation and of her particular needs.

11. Thus, the Ombudsman made the preliminary finding that the Commission had discriminated against the complainant and proposed the following solution:

“Taking into account the above findings, the Ombudsman proposes that the Commission (i) make an ex gratia payment of EUR 488.06 to the complainant to cover the travel expenses of the third person who took care of the baby, and (ii) commit itself to providing future candidates who are in a situation similar to the complainant's with information on the options available to them.”

12. In its reply to the Ombudsman’s proposal, the Commission refused to reimburse the complainant for the travel expenses of the accompanying person. It argued that the complainant had willingly decided to incur the expenses in question in the knowledge that the Commission would refuse reimbursement. The Commission also stated that the complainant had never sought any alternative solution or arrangement that would avoid her having to incur those expenses.

13. However, the Commission committed itself to provide future candidates, who are in a situation similar to that of the complainant, with information on the options available to them, such as the use of a videoconference.

14. The complainant did not agree with the Commission's answer. She argued that women who breastfeed should not be discriminated against on that account relative to other candidates.

The Ombudsman's recommendation 

15. In making her recommendation to the Commission, the Ombudsman took into account the arguments and views put forward by the parties.

16. The Ombudsman considered that it was not reasonable to expect that suggestions for alternative solutions should have come from the complainant. Rather, the Commission’s failure to offer the complainant some alternative arrangement constituted unfair discrimination. The Ombudsman also noted that, in any event, the complainant had proposed an alternative arrangement - payment of the travel expenses of another person to help with her baby - but that the Commission had rejected that solution.

17. The Ombudsman therefore recommended that: “the European Commission should make an ex gratia payment of EUR 488.06 to the complainant to cover the travel expenses of the third person who accompanied her to help take care of her baby”.

18. The Ombudsman welcomed the Commission’s acceptance of her second proposal.

19. In its response to the Ombudsman’s recommendation, the Commission maintained its position. It stated that the complainant had decided to travel with her baby and be accompanied by a third person in full knowledge of the Commission’s position. It also stated that, to the best of its knowledge, it had not authorised reimbursements, such as the one requested by the complainant, in the past. It invited the complainant to say to which such case in the past she referred.

20. In her comments on the Commission’s response, the complainant stated that she had mentioned to the Commission that it had reimbursed an accompanying person in a case similar to hers in the past. She further noted that the Commission had not offered her the option of holding a videoconference.

The Ombudsman's assessment after the recommendation

21. The Ombudsman regrets the Commission’s refusal to accept her recommendation. She notes that the Commission has merely reiterated the arguments it made before, which she had already found to be unconvincing.

22. The Ombudsman reiterates that it is the responsibility of the Commission to ensure that all candidates in a selection procedure are treated fairly and equally. She finds that, in managing the selection procedure for the job in question, the Commission should have proposed alternative options or arrangements in order to accommodate the complainant’s personal and family situation once it had been informed of it.

23. Therefore, and irrespective of whether the Commission had in the past reimbursed candidates in similar situations, the Ombudsman considers that the Commission, by failing to offer the complainant some alternative arrangements, and rejecting her own request for a specific, special arrangement, discriminated against her.

24. The Ombudsman finds that this constituted maladministration on the part of the Commission.

Conclusion

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

The European Commission, by failing to propose reasonable alternative arrangements, and then refusing to reimburse the complainant for the additional costs necessarily incurred because of her personal and family situation, discriminated against her. This constituted maladministration.

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

 

Emily O'Reilly

European Ombudsman

Strasbourg, 09/11/2017

 

[1] In this case, the Ombudsman held that the European Personnel Selection Office (EPSO) committed maladministration by refusing to schedule the complainant’s oral examination (the final stage of an open competition) on a date prior to the date on which she would give birth to her child and failed to respond adequately to her specific arguments regarding the rescheduling of her oral examination: http://www.ombudsman.europa.eu/cases/decision.faces/en/4297/html.bookmark

[2] The complainant clarified, in the course of this inquiry, that the reimbursement was made by the European Court of Justice and not by the European Commission.

[3] For further information on the background to the complaint, the parties' arguments and the Ombudsman's inquiry, please refer to the full text of the Ombudsman's proposal for a solution: https://www.ombudsman.europa.eu/en/cases/solution.faces/en/82537/html.bookmark and the Ombudsman’s recommendation: https://www.ombudsman.europa.eu/en/cases/recommendation.faces/en/80999/html.bookmark.