Strasbourg, 4 July 2007

Dear Mr B.,

On 23 April 2006, you submitted a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO") concerning selection procedure EPSO CAST 25 for the recruitment of contract agents.

On 29 May 2006, I forwarded the complaint to the Director of EPSO. EPSO sent its opinion on 25 September 2006. On 29 September 2006, I forwarded it to you with an invitation to make observations, which you sent on 5 November 2006.

On 21 March 2007, I addressed a proposal for a friendly solution to EPSO. EPSO sent its reply on 11 April 2007. I forwarded it to you on 17 April 2007 with an invitation to make observations, which you sent on 28 May 2007.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The complainant, a German citizen, took part in selection procedure CAST 25, organised by EPSO for the recruitment of contract agents for the EU institutions and bodies. In the first phase of the selection procedure, candidates had to take a series of computer-based multiple choice tests, intended to assess their verbal and numerical reasoning skills. The complainant chose to take these tests at a testing centre in Berlin on 23 December 2005. On 20 November 2005, he inquired at the testing centre whether it would be possible to configure the computer mouse for left-handed use for his tests. According to the complainant, he was informed that, due to the computer programme EPSO was using for the tests, a reconfiguration of the mouse was not possible.

By e-mail of 12 December 2005, the complainant drew EPSO's attention to this problem. According to him, EPSO replied on 13 December 2005 that it was not possible to reconfigure the mouse, but that, since candidates were only required to click on the correct answers, this situation should not cause him any problems.

By fax of 14 December 2005, the complainant complained to the competent head of unit within EPSO about the issue and claimed that EPSO should allow for a re-configuration of the mouse in future computer-based tests. He argued that a left-handed person who had only used the mouse in left-handed configuration over years would not only have to concentrate on the contents of the tests but also on the handling of the mouse, and added that this was not fair to these candidates. According to the complainant, he received a reply to this fax which was identical to EPSO's reply of 13 December 2005.

The complainant furthermore reported that, during the short introduction to the test procedure held immediately before the actual tests began, he was informed by testing centre staff that an online calculator was available for the numerical reasoning test. Therefore, it was clear that, contrary to the information he had received from EPSO, the handling of the mouse was not limited to clicking on the correct answer.

In his complaint to the European Ombudsman, the complainant pointed out that he regularly observed that right-handed people had considerable difficulties using a mouse configured for left-handed use. It was clear that certain motion automatisms did not work properly in such a situation, so that the person concerned had to concentrate on the handling of the mouse. The complainant considered that this was intolerable in a test situation.

In summary, the complainant alleged that right- and left-handed candidates were treated unequally in the computer-based selection tests for selection procedure CAST 25.

In support of this allegation, he submitted that (i) the fact that the left-handed use of the mouse was not considered during the preparation of the test programme and (ii) the way in which EPSO subsequently dealt with this matter were discriminatory towards left-handed candidates.

The complainant claimed that the problem should be eliminated for further computer-based selection tests.

He also stated that he would be interested in resitting the tests, which he did not pass, under adequate conditions for left-handed candidates. However, he stated that this would probably not be possible, especially in view of the position EPSO had taken up to that point.

The Ombudsman considered that it was not clear whether the complainant's latter statement was to be interpreted as a further claim. However, since the complainant did not appear to have raised this issue with EPSO, the Ombudsman decided that he could not include it in his inquiry in any event because the complainant had not made any prior administrative approaches to the institution concerned, as required under Article 2(4) of the Statute of the European Ombudsman. The complainant was advised that, should he wish to pursue this aspect of the case further, he could turn to the Ombudsman again after having made such approaches. It appears that the complainant has not made use of this possibility.

THE INQUIRY

EPSO's opinion

In its opinion, EPSO stated that the CAST 25 procedure was the first selection procedure in which the so-called "computer-based testing" had been used on a large scale. The selection tests had been carried out in all EU Member States over a period of several weeks. Prior to the tests, on 21 November 2005, EPSO had published information on the structure and marking of these tests on its website, including the information that an online calculator would be available for the tests.

On 13 December 2005, EPSO had informed the complainant that the IT system used for the CAST 25 procedure did not allow for a reconfiguration of the mouse function. According to EPSO, since candidates were only required to use the mouse in order to click on the correct answer and on the navigation buttons, this situation should not cause him any problems.

On 27 February 2006, EPSO had communicated the test results to each candidate individually. The complainant had been informed that he had not achieved the required minimum percentage of correct answers in the verbal and numerical reasoning tests, and that, as a result, he had not been admitted to the next phase of the selection procedure. In both tests taken together, only 31.11% of his answers had been correct, whereas a percentage of at least 50% of correct answers had been required for his function group.

As to the preparation of the tests, EPSO submitted that, since candidates had only been required to use the mouse for a simple click in order to choose a reply or to move on to the next screen, a change in the configuration of the mouse had not been considered.

However, EPSO also submitted that, on the basis of this first experience with computer-based testing, it had conducted, together with its contractor, a review which had led to the finding that most of the problems that had arisen in the CAST 25 selection procedure could be addressed by introducing technical improvements.

Among other things, EPSO had agreed with its contractor that, from now on, in order to cater for the requests of left-handed candidates, arrangements would be made for the possibility of changing the mouse configuration by reversing the functions of the two mouse buttons.

Therefore, EPSO took the view that it had met the complainant's claim that, in the future, the situation of left-handed candidates should be taken into account.

The complainant's observations

In his observations, the complainant welcomed EPSO's announcement that it would, together with its contractor, improve the computer-based testing in relation to the handling of the mouse.

However, he stated that he continued to consider EPSO's reasoning and the manner in which it had handled his concerns to be arrogant and lacking in awareness as regards the problem at issue. He had the impression that EPSO was trying to minimise the importance of the problem. If there had been a defect in the preparation of the computer-based tests, even if it had been due to a simple oversight, it would have been desirable for EPSO clearly to acknowledge this. EPSO's statements that candidates had only been required to reply by simple mouse clicks and that he had only replied to 31.11% of the questions correctly suggested that EPSO was insinuating that he had raised a pseudo-problem and that, since he had in any event not passed the tests, there was no reason to complain. The complainant pointed out that, in other selection procedures in which he had participated, he had surpassed the required minimum percentage of correct answers.

However, the complainant concluded that, as far as he was concerned, the matter was closed because he considered it "futile to try to raise awareness for the problems of 20 to 25% of the population by these means".

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

The Ombudsman's considerations

After careful consideration of the opinion and observations, the Ombudsman was not satisfied that EPSO has responded adequately to the complainant's allegation. This view was based on the following considerations:

1 The principle of non-discrimination is a fundamental principle of Community law. More specifically, point 3(b) of the Call for expression of interest for the CAST 25 selection procedure(1) provides:

"The European Institutions apply an equal opportunities policy and accept applications without distinction on grounds of sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, sexual orientation, marital status or family situation."

It is obvious that this equal opportunities policy must also be reflected in the course of the selection process, namely, by giving all candidates equal opportunities to pass the relevant tests.

2 The Ombudsman gathered that the reconfiguration of the mouse for left-handed use consists in reversing the function of the two mouse buttons. This operation can be carried out, in the standard computer operating systems, by following a short sequence of simple steps. This fact in itself should suggest that such a reconfiguration is standard practice, which is confirmed by everyday experience. Furthermore, it is common sense that persons who have worked with a computer mouse in a certain configuration for years would find it difficult suddenly to adjust to using a differently configured mouse. This is particularly true in a test situation, in which candidates are likely to experience stress. Such stress could be intensified by the need to handle unfamiliar equipment, and even more so if time is an important factor in the test. This is generally the case in the verbal and numerical reasoning tests organised by EPSO, in which candidates are allowed very little time in order to reply to a large number of questions.

3 EPSO submitted that the possibility of changing the configuration of the mouse had not been considered, since candidates had only been required to reply to questions or to move on to the next screen by a simple mouse click. First, it appeared that this premise was not correct. It appeared that candidates also had an online calculator at their disposal which was operated by using the mouse. In its opinion, EPSO stated itself that it had informed candidates prior to the tests that such an online calculator was available. Second, and even if the premise were correct, the Ombudsman considered that the fact that candidates had to choose their answers and to navigate by using the mouse would already in itself have been likely to cause problems to persons in the complainant's situation. Therefore, the Ombudsman considered that candidates used to the configuration of the mouse for left-handed use were put at a disadvantage during the tests.

4 EPSO had not invoked any reasons that could have justified this difference in treatment. In view of the simplicity of the mouse reconfiguration process in standard computer operating systems, the Ombudsman considered it to be, in any event, unlikely that providing for such a reconfiguration would have caused technical difficulties. Furthermore, the complainant contacted the testing centre and, subsequently, EPSO in good time in order to allow the latter to take his concerns into account.

5 On the basis of these considerations, it appeared that EPSO had failed to provide for the possibility of reconfiguring the computer mouse to left-handed use for the computer-based tests in the CAST 25 selection procedure, even though it was informed of the problem in good time. This was likely to have put left-handed candidates at a disadvantage by comparison with right-handed candidates. In the absence of any explanation that could justify this difference in treatment, the Ombudsman came to the provisional conclusion that EPSO's failure to provide for the possibility of reconfiguring the computer mouse could constitute discrimination and thus an instance of maladministration.

The Ombudsman's proposal for a friendly solution

Article 3(5) of his Statute directs the Ombudsman to seek, as far as possible, a solution with the institution concerned to eliminate the instance of maladministration and satisfy the complainant.

The Ombudsman therefore made the following proposal for a friendly solution to EPSO:

EPSO could consider (i) acknowledging expressly that the complainant's concerns in relation to possible discrimination against left-handed candidates in the CAST 25 selection procedure were justified and (ii) apologising to him for the fact that it did not make arrangements in order to allow for a reconfiguration of the computer mouse for left-handed use in the tests in which he participated.

EPSO's reply

In its reply, EPSO pointed out that, contrary to the complainant's conviction that it had tried to minimise the importance of his problem, it had never taken the view that the problem did not exist. In order to corroborate its position, EPSO stated that it had indicated in its opinion that technical improvements would be implemented in the future.

Furthermore, EPSO wished to clarify that the computer system used by its contractor in order to carry out the tests was not a "standard operating system", but eliminated all normal Windows functions on the computer and replaced them by its own functionalities. Therefore, the reconfiguration of the computer mouse did not constitute a "standard practice", but was impossible at the moment of the carrying out of the tests.

EPSO apologised to the complainant for the inconvenience that might have been caused by the fact that it had been impossible to reconfigure the mouse at the moment he took his test.

EPSO added that, as it had announced previously, it had now made arrangements with its contractor in order to allow for the possibility of a reconfiguration of the mouse for left-handed use in future computer-based tests.

The complainant's observations

In his observations, the complainant stated that he was disappointed that EPSO had placed on its contractor the responsibility for the problem he had encountered and that it had not unequivocally acknowledged that left-handed candidates had been put at a disadvantage.

However, the complainant also stated that, since EPSO had apparently now taken measures in order to eliminate the problem, his case could be closed. He thanked the Ombudsman for his intervention and announced that, should he encounter similar difficulties in other EPSO selection procedures, he would turn to him again.

THE DECISION

1 Introductory remarks

1.1 The complainant, a German citizen, took part in selection procedure CAST 25, organised by the European Personnel Selection Office ("EPSO") for the recruitment of contract agents for the EU institutions and bodies. In the first phase of the selection procedure, candidates had to take a series of computer-based multiple choice tests, intended to assess their verbal and numerical reasoning skills. The complainant reported that, in reply to his query as to whether it would be possible to configure the computer mouse to allow for left-handed use for his tests, he was informed that, due to the IT system used for this procedure, a reconfiguration of the mouse was not possible.

1.2 In his complaint to the Ombudsman, the complainant alleged that right- and left-handed candidates had been treated unequally in the computer-based tests. In support of this allegation, he submitted that (i) the fact that the left-handed use of the mouse had not been considered during the preparation of the test programme and (ii) the way in which EPSO subsequently dealt with this matter were discriminatory towards left-handed candidates. The complainant claimed that the problem should be eliminated in further computer-based selection tests.

1.3 In his complaint, the complainant also stated that he would be interested in resitting the tests, which he did not pass, under adequate conditions for left-handed candidates. However, he stated that this would probably not be possible, especially in view of the position EPSO had taken up to that point. The Ombudsman considered that it was not clear whether the complainant's latter statement was to be interpreted as a claim. However, since the complainant had not made any prior approaches, as required under Article 2(4) of the European Ombudsman's Statute, to EPSO in this respect, the Ombudsman concluded that, in any event, he could not include this issue in the present inquiry. The complainant was advised that he could turn to the Ombudsman again after having made such approaches. However, the complainant has not made use of this possibility.

1.4 In his observations, the complainant emphasised that he considered EPSO's reasoning and the manner in which it had handled his concerns to be arrogant. It has to be noted that the allegation on which the Ombudsman asked EPSO for an opinion related only to alleged discrimination. Therefore, the Ombudsman considers that the complainant's criticism of EPSO's behaviour as arrogant has to be considered as a new allegation, on which EPSO would have to be asked for an opinion before the Ombudsman could assess its merits. However, in view of the complainant's statement that the case could be closed, it does not appear appropriate to conduct further inquiries in this respect. If the complainant wishes to pursue the issue further, he remains of course free to submit a new complaint to the Ombudsman.

2 Alleged discrimination against left-handed candidates and related claim

2.1 In support of his view that left-handed candidates had been put at a disadvantage in the computer-based tests, the complainant submitted that, having used a computer mouse in left-handed configuration for years, he had to concentrate not only on the contents of the tests but also on the handling of the mouse. According to him, certain motion automatisms did not work properly in such a situation. The complainant added that the use of the mouse during the tests was not restricted to clicking on the correct answers, but also included the operation of an online calculator. The complainant claimed that the problem concerning the configuration of the mouse should be eliminated in further computer-based tests.

2.2 In its opinion, EPSO stated that the CAST 25 procedure was the first selection procedure in which the computer-based testing had been used on a large scale. Since candidates had only been required to reply to questions or to move on to the next screen by a simple mouse click, the possibility of changing the configuration of the mouse had not been considered. However, EPSO also stated that, as one of the results of a review following its first experience with computer-based testing, it had agreed with its contractor that, from now on, in order to cater for the wishes of left-handed candidates, arrangements would be made for the possibility of changing the mouse configuration by reversing the functions of the two mouse buttons.

2.3 In his observations, the complainant welcomed EPSO's latter announcement. However, he argued that, if there had been a defect in the preparation of the computer-based tests, it would have been desirable for EPSO clearly to acknowledge this.

2.4 After careful consideration of the opinion and observations, the Ombudsman concluded that, as regards the complainant's claim, EPSO appeared to have taken steps to settle the matter and to have satisfied the complainant.

2.5 However, as regards the complainant's allegation, the Ombudsman noted that EPSO had failed to provide for the possibility of reconfiguring the computer mouse to left-handed use, even though it was informed of the problem in good time. This was likely to have put left-handed candidates at a disadvantage by comparison with right-handed candidates. In the absence of an explanation that could justify this difference in treatment, the Ombudsman came to the provisional conclusion that EPSO's failure to provide for the possibility of reconfiguring the computer mouse could constitute discrimination and thus an instance of maladministration.

2.6 Consequently, the Ombudsman addressed the following proposal for a friendly solution to EPSO:

"EPSO could consider (i) acknowledging expressly that the complainant's concerns in relation to possible discrimination against left-handed candidates in the CAST 25 selection procedure were justified and (ii) apologising to him for the fact that it did not make arrangements in order to allow for a reconfiguration of the computer mouse for left-handed use in the tests in which he participated."

2.7 In its reply, EPSO pointed out that, contrary to the complainant's conviction that it had tried to minimise the importance of his problem, it had never taken the view that the problem did not exist. The proof for this was that it had indicated in its opinion that technical improvements would be implemented in the future. Furthermore, EPSO wished to clarify that the reconfiguration of the computer mouse did not constitute a "standard practice", but was impossible at the moment of the carrying out of the tests. EPSO apologised to the complainant for the inconvenience that might have been caused by the fact that it had been impossible to reconfigure the mouse at the moment he took his test. It added that, as it had announced previously, it had now made arrangements with its contractor in order to allow for the possibility of a reconfiguration of the mouse for left-handed use in future computer-based tests.

2.8 In his observations, the complainant stated that he was disappointed that EPSO had placed on its contractor the responsibility for the problem he had encountered and that it had not unequivocally acknowledged that left-handed candidates had been put at a disadvantage. However, the complainant also stated that, since EPSO had apparently now taken measures in order to eliminate the problem, his case could be closed. He thanked the Ombudsman for his intervention and announced that, should he encounter similar difficulties in other EPSO selection procedures, he would turn to him again.

2.9 The Ombudsman is pleased to note that EPSO has reacted positively to his proposal for a friendly solution. However, given that the complainant does not appear to be entirely satisfied with EPSO's reply, the Ombudsman is obliged to conclude that it has not been possible for him to achieve a friendly solution in this case. The Ombudsman considers that he therefore has to examine whether EPSO's reply is sufficient to eliminate the maladministration identified in his proposal for a friendly solution or whether, in view of its reply, there is no need for further action on his part.

2.10 As regards the second aspect of his proposal, the Ombudsman is pleased to note that EPSO agreed to apologise to the complainant, although he regrets that it was not clearer in its choice of words, given that it apologised for a possible "inconvenience" and not for a disadvantage experienced by the complainant.

2.11 As regards the first aspect of the proposal, EPSO stated that it had never taken the view that the complainant's problem did not exist. However, the Ombudsman considers that this statement does not constitute an express acknowledgement that the complainant's concerns in relation to possible discrimination were justified, as the Ombudsman had proposed.

2.12 On the basis of these considerations, the Ombudsman concludes that, even though he appreciates the constructive attitude EPSO demonstrated in its reply to his proposal for a friendly solution, this reply does not eliminate the instance of maladministration he had identified.

2.13 However, in view of EPSO's constructive approach and since the complainant has stated that the case could be closed, the Ombudsman considers that there is no need for further action on his part.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it appears that he does not need to take further action in relation to the matter raised by the complainant. The Ombudsman closes the case.

The Director of EPSO will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The text of the call for expression of interest is available on EPSO's website (http://europa.eu/epso/contract-agents/call-eu25_en.pdf).