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Performance evaluation (661,-666)
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Keywords: Performance evaluation
Total judgments found: 98
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Judgment 4986
139th Session, 2025
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2017.
Considerations 3 and 6
Extract:
[T]hese requests involve an impermissible determination by the Tribunal of what the appraisal should be. The Tribunal recalls its case law, stated, for example, in consideration 13 of Judgment 4637, referring to Judgment 4257, that its power to review appraisal reports is limited to considering, among other things, whether there was illegality in drawing up the contested report. It is not within the Tribunal’s power to change the overall assessment rating or to upgrade the evaluation of the functional and core competencies in an appraisal report (see, for example, Judgments 4788, consideration 4, 4720, consideration 4, 4719, consideration 7, and 4718, consideration 7). The Tribunal may, if necessary, set aside the contested appraisal report at the same time as the impugned decision and remit the matter to the EPO for review.
[…]
The Tribunal recalls the following statement which it made in Judgment 4564, considerations 2 and 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“2. [...] It is not for the Tribunal, whose role is not to supplant the administrative authorities of an international organisation, to conduct an assessment of an employee’s merits instead of the competent reporting officer or the various supervisors and appeals bodies which may be called upon to revise that assessment. [...]
3. [...] [A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
(See also Judgment 4786, consideration 4.)
Reference(s)
ILOAT Judgment(s): 4257, 4564, 4637, 4718, 4719, 4720, 4786, 4788
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4985
139th Session, 2025
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2017.
Considerations 1 and 4
Extract:
The complainant’s request to order that the EPO issues a new appraisal report for 2017 in which his inability to perform his duties (due to his medical condition) be taken into account and the productivity results be assessed on that basis is rejected as the Tribunal does not issue orders of this kind. The Tribunal however observes that it may, if appropriate, set aside the contested appraisal report at the same time as the impugned decision and remit the matter to the EPO for review.
[…]
There is no authority that permits the complainant’s 2017 appraisal report to take into consideration his previous reports. The Tribunal observes that an appraisal report, the purpose of which is to assess an employee’s merits over a given period and which is drawn up according to the rules governing the evaluation exercise for the period in question, is an entirely separate document from previous appraisal reports (see, for example, Judgments 4564, consideration 6, and 1688, consideration 6).
Reference(s)
ILOAT Judgment(s): 1688, 4564
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4983
139th Session, 2025
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2017.
Considerations 3, 6 and 10
Extract:
The Tribunal recalls its case law, stated, for example, in consideration 13 of Judgment 4637, referring to Judgments 4564 and 4257, that its power to review appraisal reports is limited to considering, among other things, whether there was illegality in drawing up the contested report. It is not within its power to change the overall assessment rating or to upgrade the evaluation of the competencies in an appraisal report (see, for example, Judgments 4788, consideration 4, 4720, consideration 4, 4719, consideration 7, and 4718, consideration 7). The Tribunal may, if necessary, set aside the contested appraisal report at the same time as the impugned decision and remit the matter to the EPO for review.
[…]
The Tribunal recalls the following statement which it made in Judgment 4564, considerations 2 and 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“2. [...] It is not for the Tribunal, whose role is not to supplant the administrative authorities of an international organisation, to conduct an assessment of an employee’s merits instead of the competent reporting officer or the various supervisors and appeals bodies which may be called upon to revise that assessment. [...]
3. [...] [A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
(See also Judgment 4786, consideration 4.)
[…]
The complainant’s assumption that his past performance should be considered is unmeritorious. There is no authority that permits the complainant’s 2017 appraisal report to take into consideration his previous reports. The Tribunal observes that an appraisal report, the purpose of which is to assess an employee’s merits over a given period and which is drawn up according to the rules governing the evaluation exercise for the period in question, is an entirely separate document from previous appraisal reports (see, for example, Judgments 4564, consideration 6, and 1688, consideration 6).
Reference(s)
ILOAT Judgment(s): 1688, 4257, 4564, 4637, 4718, 4719, 4720, 4786
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4982
139th Session, 2025
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2017.
Considerations 3 and 7
Extract:
The complainant’s request […] to order that his 2017 appraisal report be amended so that he receives an overall performance rating of “above the level required for the function” instead of “corresponding to the level required for the function” must be rejected as the Tribunal is not competent to issue orders of this kind. In the main, this request involves an impermissible determination by the Tribunal of what the appraisal should be. The Tribunal recalls its case law, stated, for example, in consideration 13 of Judgment 4637, referring to Judgments 4564 and 4257, that its power to review appraisal reports is limited to considering, among other things, whether there was illegality in drawing up the contested report. It is not within its power to change the overall assessment rating or to upgrade the evaluation of the competencies in an appraisal report (see, for example, Judgments 4788, consideration 4, 4720, consideration 4, 4719, consideration 7, and 4718, consideration 7). The Tribunal may, if necessary, set aside the contested appraisal report at the same time as the impugned decision and remit the matter to the EPO for review.
[…]
As the complainant challenges the impugned decision on procedural and substantive grounds, the Tribunal recalls the following statement which it made in Judgment 4564, considerations 2 and 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“2. [...] It is not for the Tribunal, whose role is not to supplant the administrative authorities of an international organisation, to conduct an assessment of an employee’s merits instead of the competent reporting officer or the various supervisors and appeals bodies which may be called upon to revise that assessment. [...]
3. [...] [A]ssessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority.”
(See also Judgment 4786, consideration 4.)
Reference(s)
ILOAT Judgment(s): 4257, 4564, 4637, 4718, 4719, 4720, 4786, 4788
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4981
139th Session, 2025
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her appraisal report for 2017.
Consideration 7
Extract:
As the complainant challenges the impugned decision and her 2017 appraisal report, the Tribunal recalls its consistent case law according to which the power of review that it exercises in the matter of staff appraisals is a limited one. It is not for the Tribunal, whose role is not to supplant the administrative authorities of an international organisation, to conduct an assessment of an employee’s merits instead of the competent reporting officer or the various supervisors and appeals bodies which may be called upon to revise that assessment. The assessment of an employee’s merit during a specified period involves a value judgement. For this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. The Tribunal must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgment 4564, consideration 3). The Tribunal has also stated that this limitation on its power of review in such cases naturally applies to both the rating given in a staff report and the comments accompanying the rating (see, for example, Judgments 4720, consideration 11, 4564, consideration 3, 3945, consideration 7, and 3228, consideration 3). The Tribunal has stated as well, in consideration 6 of Judgment 1136, that, within the scope of the reporting officer’s wide discretion, it is to be presumed that the assessment of a staff member’s performance is made in good faith and in the interest of both the staff and the organisation.
Reference(s)
ILOAT Judgment(s): 1136, 3228, 3945, 4564, 4720
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4980
139th Session, 2025
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2012-2013.
Considerations 3, 6 and 9
Extract:
In light of the Tribunal’s limited scope of review, it is not within its power of review to order the amendment of the contested staff report so that the complainant receives a marking of “very good” under productivity, attitude to work and dealings with others and for his overall performance. The Tribunal may however, if appropriate, set aside the contested staff report at the same time as the impugned decision and remit the matter to the EPO for review.
[…]
In its analysis of the submissions the complainant proffered to challenge the merits of the assessment and his request for the amendment of the markings he received for productivity and attitude to work and dealings with others, as well as for the overall performance to “very good”, the Appeals Committee correctly appreciated that, pursuant to the case law, its scope of review of a performance evaluation was wider than that of the Tribunal. It cited the statements in consideration 5 of Judgment 3318 and consideration 6 of Judgment 3161, that its power of review in effect extends to the overall re-examination of all matters submitted to it, except to the extent that the internal rules which governs the Committee provide otherwise, its role being to determine whether the decision appealed is correct on the facts or whether some other decision should be made. The Committee also noted the Tribunal’s statement in consideration 6 of Judgment 1136, that, within the scope of the reporting officer’s wide discretion, it is to be presumed that the assessment of a staff member’s performance is made in good faith and in the interest of both the staff and the organisation.
[…]
The Appeals Committee had also noted and correctly rejected the complainant’s argument which suggested, in effect, that the reporting officer erred by not considering the markings and overall performance ratings he had been awarded in previous performance evaluations. The Committee stated, correctly, that such reference was irrelevant to the subject assessment because, as a matter of principle, to be fair, every staff report has to be consistent in itself and cannot be compared with previous staff reports and must be based solely upon a staff member’s performance in each reporting period. The Committee also correctly rejected the other arguments the complainant proffered to support his request for the amendment of the subject markings and overall performance rating, which are based on his subjective opinions. Those arguments did not engage the scope of the Committee’s power of review and of the Tribunal’s power of review recalled in Judgment 4977, consideration 2. They are therefore unfounded, as is the complainant’s claim for moral damages for the “wrongful report” consequentially.
Reference(s)
ILOAT Judgment(s): 1136, 3161, 3318, 4977
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4979
139th Session, 2025
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2012-2013.
Considerations 4 and 6-7
Extract:
In light of the limited scope of the review the Tribunal exercises over staff reports the Tribunal may, if appropriate, set aside the contested staff report at the same time as the impugned decision and remit the matter to the EPO for review.
[…]
In its opinion, the Appeals Committee correctly appreciated that its scope of review of a staff appraisal was wider than that of the Tribunal. This was by reference to the case law stated in consideration 5 of Judgment 3318, considerations 5 to 8 of Judgment 3161 and consideration 6 of Judgment 3703 to the effect that it would commit an error of law if it restricts its review by reference to the scope of the Tribunal’s power of review. The Committee noted, in particular, that the case law required it to scrutinize the performance evaluation much more closely to determine whether the reporting officer had exercised her or his discretion lawfully and that its power of review extended to the overall re-examination of all matters submitted to it concerning the contested staff report. This was except to the extent that the internal rules which governs it (the Committee) provides otherwise, its role being to determine whether the decision appealed is correct on the facts or whether some other decision should be made.
The Tribunal is satisfied that the Appeals Committee properly exercised its power of review.
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4978
139th Session, 2025
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her staff report for 2012.
Considerations 6 and 13
Extract:
The complainant’s requests that the Tribunal decides the case and not refer it back to the EPO invites the Tribunal to determine the markings she should be awarded under each head of evaluation and the overall performance rating. The request is rejected by reference to the general principles recalled in Judgment 4977, consideration 2. The evaluation of a staff member’s performance falls within the discretion of the officers charged with conducting it. Since the Tribunal will not substitute its own assessment for that made by the persons or bodies responsible for assessing an employee’s merits, the request would involve an impermissible determination by the Tribunal of what the appraisal should be (see, recently, Judgments 4893, consideration 5, and 4786, consideration 1). The Tribunal however observes that it may, if appropriate, set aside the contested staff report at the same time as the impugned decision and remit the matter to the EPO for review.
[…]
The complainant’s challenge to the merits of the contested staff report is also unfounded. The Tribunal is satisfied that the Appeals Committee undertook a detailed, balanced, coherent and persuasive analysis of the evaluation made in the staff report and the methodology adopted. The Committee addressed in some detail the markings the complainant’s reporting and countersigning officers awarded in the contested staff report and reasonably concluded that their evaluation was flawed to the extent that the comments made in the category attitude to work and dealings with others were unbalanced and thereupon recommended the staff report be set aside in that respect. The Tribunal determines that the Committee, which in its opinion noted the discretion which a reporting officer enjoys in conducting an assessment, properly acted within its review powers when it so concluded.
Reference(s)
ILOAT Judgment(s): 4786, 4893, 4977
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4977
139th Session, 2025
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her staff report for 2012-2013.
Consideration 2
Extract:
As the complainant challenges the impugned decision on procedural and substantive grounds, the Tribunal recalls its consistent case law according to which the power of review that it exercises in the matter of staff appraisals is a limited one. It is not for the Tribunal, whose role is not to supplant the administrative authorities of an international organisation, to conduct an assessment of an employee’s merits instead of the competent reporting officer or the various supervisors and appeals bodies which may be called upon to revise that assessment. The assessment of an employee’s merit during a specified period involves a value judgement. For this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. The Tribunal must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgment 4564, consideration 3). The Tribunal has also stated that this limitation on its power of review in such cases naturally applies to both the rating given in a staff report and the comments accompanying the rating (see, for example, Judgments 4720, consideration 11, 4564, consideration 3, 3945, consideration 7, and 3228, consideration 3). The Tribunal has stated as well, in consideration 6 of Judgment 1136, that, within the scope of the reporting officer’s wide discretion, it is to be presumed that the assessment of a staff member’s performance is made in good faith and in the interest of both the staff and the organisation.
Reference(s)
ILOAT Judgment(s): 1136, 3228, 3945, 4564, 4720
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4976
139th Session, 2025
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2010-2011.
Considerations 5-6
Extract:
Regarding the alleged substantive flaws in the contested staff report, the complainant’s contention to the effect that the overall performance marking which he received lacks proper basis as it does not correspond to his performance for the period of assessment is based on the complainant’s subjective view of his performance for that period rather than upon any discernible unlawfulness within the Tribunal’s limited power of review. It is accordingly unfounded.
It is notable, as the EPO points out, that the contested report conveys a favourable assessment of the complainant’s performance. Moreover, he does not allege any adverse effect arising from this favourable evaluation nor does he allege that the positive markings he received have caused or are liable to cause him any injury. In fact, the complainant fails to prove that the markings and the overall performance rating he was awarded in the contested staff report were in breach of a proper procedure and did not benefit from a thorough assessment. The Tribunal is satisfied, as is obvious from the Appeals Committee’s conclusion, which was accepted in the impugned decision, that the complainant’s reporting and countersigning officers fairly substantiated the markings and the overall performance rating they awarded to him in the report.
Keywords:
performance evaluation; performance report; rating;
Judgment 4962
139th Session, 2025
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: La requérante conteste l’évaluation de ses performances pour l’année 2019, ainsi que les décisions subséquentes de «geler» son avancement d’échelon et de la soumettre à un plan d’amélioration de ses performances.
Considerations 7 and 13-14
Extract:
[L]e Tribunal rappelle […] sa jurisprudence constante selon laquelle l’évaluation des mérites d’un fonctionnaire au cours d’une période déterminée fait appel à un jugement de valeur, ce qui exige de sa part qu’il respecte le pouvoir d’appréciation des organes chargés de procéder à une telle évaluation. Si le Tribunal doit certes contrôler si les notes attribuées au fonctionnaire ont été à tous égards régulièrement établies, il ne lui appartient cependant pas de substituer sa propre appréciation à celle des personnes et/ou organes chargés de procéder à l’évaluation des membres du personnel d’une organisation internationale. Le Tribunal n’interviendra en conséquence que si un tel rapport émane d’une autorité incompétente, a été établi en violation d’une règle de forme ou de procédure, repose sur une erreur de droit ou de fait, omet de tenir compte d’un fait essentiel, tire du dossier des conclusions manifestement erronées, ou est entaché de détournement de pouvoir (voir, par exemple, les jugements 4564, aux considérants 3 et 8, 4258, au considérant 2, 3692, au considérant 8, 3268, au considérant 9, 3228, au considérant 3, 3062, au considérant 3, et 1688, au considérant 5).
[…]
[L]e Tribunal relève d’abord que la circonstance que les membres du Comité des rapports ont formulé des considérations parfois divergentes au cours de leurs discussions tend, contrairement à ce qu’affirme la requérante, à conduire à la conclusion que ces membres ont bien rempli leurs fonctions de manière indépendante et impartiale.
[…]
Le Tribunal en conclut que, si les opinions des membres du Comité des rapports ont pu diverger au cours des discussions, il n’en reste pas moins que leur recommandation finale a été formulée à l’unanimité.
Enfin, le Tribunal estime que le Directeur général a pu, dans le cadre du large pouvoir d’appréciation dont il dispose en la matière, considérer que l’établissement d’un plan d’amélioration des performances destiné à permettre à la requérante de rectifier sa conduite au sein de l’Organisation était plus indiqué qu’une simple mutation de l’intéressée.
Reference(s)
ILOAT Judgment(s): 1688, 3062, 3228, 3268, 3692, 4258, 4564
Keywords:
discretion; performance evaluation; rating;
Judgment keywords
Keywords:
complaint allowed; performance evaluation; rating; step; supervision; supervisor;
Judgment 4961
139th Session, 2025
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: La requérante conteste la décision de rejeter sa plainte pour harcèlement moral, ainsi que ce qu’elle considère être une décision d’annulation de l’évaluation de ses performances pour 2019 et la décision de remettre en place son ancien supérieur hiérarchique et de le désigner comme responsable de l’établissement de son évaluation annuelle pour 2019.
Judgment keywords
Keywords:
complaint allowed; harassment; performance evaluation; rating; supervision; supervisor;
Judgment 4916
139th Session, 2025
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests her Performance Appraisal Report for the period from 1 November 2019 to 31 October 2020 and the decision not to renew her appointment due to unsatisfactory performance and loss of trust.
Consideration 4
Extract:
The Tribunal also recalls its well-established case law regarding its limited power of review of decisions relating to performance evaluations. As stated in Judgment 4267, consideration 4, “assessment of merit is an exercise that involves a value judgement, signifying that persons may quite reasonably hold different views on the matter in issue. Moreover, because of the nature of a value judgement, the grounds on which a decision involving a judgement of that kind may be reviewed are limited to those applicable to discretionary decisions. Thus, the Tribunal will only interfere if the decision was taken without authority, if it was based on an error of law or fact, a material fact was overlooked, or a plainly wrong conclusion was drawn from the facts, if it was taken in breach of a rule of form or procedure, or if there was an abuse of authority (see, for example, Judgments 3006, consideration 7, and 3062, consideration 3) [...]”.
Reference(s)
ILOAT Judgment(s): 3006, 3062, 4267
Keywords:
judicial review; limits; performance; performance evaluation; performance report;
Consideration 7
Extract:
The complainant […] seeks the annulment of her 29 October 2020 [Performance Appraisal Report – PAR], covering the period from 1 November 2019 to 31 October 2020, and the re-opening of the performance appraisal procedure for that period to correct the substantive and procedural errors committed in her PAR. However, given the time that has elapsed since the complainant’s separation from the organisation, the Tribunal finds no useful purpose to order the re-opening of the performance appraisal procedure for the aforementioned period.
As the complainant has established that her 29 October 2020 PAR and the resulting decision not to renew her appointment were tainted by an error of law, […] the complainant’s 29 October 2020 PAR must be annulled.
Keywords:
decision quashed; mistake of law; non-renewal of contract; performance; performance evaluation; performance report;
Consideration 9
Extract:
As the complainant has established moral injury occasioned by the negative appraisal of her performance in her 2020 PAR and the resulting recommendation not to renew her appointment, she is also entitled to 10,000 euros in moral damages, as per her claim.
Keywords:
mistake of fact; moral damages; moral injury; performance evaluation; performance report;
Judgment keywords
Keywords:
breach of confidentiality; complaint allowed; mistake of law; non-renewal of contract; performance; performance evaluation; performance report; testimony; witness;
Judgment 4902
138th Session, 2024
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his performance evaluation for 2019 rating such performance as “fair”.
Judgment keywords
Keywords:
complaint dismissed; performance evaluation; performance report; rating;
Considerations 13-14
Extract:
The complainant further maintains that paragraph 31 of AC 26 was violated because the HR representative who was to be consulted for the performance qualification during a collegial meeting was not present at that meeting as contemplated in the applicable procedures.
But, on this other issue, the record indicates that the HR representative stated at the JAAB hearing that during the final collegial consultation meeting of 24 March 2020, she had been unable to attend due to technical problems but that she finally ended up talking to the IT Head of Department later on the same day with regard to this collegial consultation.
While it is true that this discussion did not take place in an ideal collegial manner as a result of this technical problem, the fact remains that a meeting took place, with only one member missing, and that the consultation with the HR representative occurred later on the very same day and allowed the Head of Department to meet the requirements of the procedure set forth in AC 26 in this regard. This was also not the only consultation conducted in the performance process, and the missing member was the representative of HR, who did not have direct input to give on the appraisal of the performance of the complainant and was rather plausibly there to provide technical expertise.
In sum, even accepting that this constituted a procedural flaw, the Tribunal considers that it does not, in any event, amount to a substantial defect that would render the performance appraisal irregular and justify setting aside the impugned decision on that basis.
[…]
The complainant further maintains that paragraph 31 of AC 26 was violated because the HR representative who was to be consulted for the performance qualification during a collegial meeting was not present at that meeting as contemplated in the applicable procedures.
But, on this other issue, the record indicates that the HR representative stated at the JAAB hearing that during the final collegial consultation meeting of 24 March 2020, she had been unable to attend due to technical problems but that she finally ended up talking to the IT Head of Department later on the same day with regard to this collegial consultation.
While it is true that this discussion did not take place in an ideal collegial manner as a result of this technical problem, the fact remains that a meeting took place, with only one member missing, and that the consultation with the HR representative occurred later on the very same day and allowed the Head of Department to meet the requirements of the procedure set forth in AC 26 in this regard. This was also not the only consultation conducted in the performance process, and the missing member was the representative of HR, who did not have direct input to give on the appraisal of the performance of the complainant and was rather plausibly there to provide technical expertise.
In sum, even accepting that this constituted a procedural flaw, the Tribunal considers that it does not, in any event, amount to a substantial defect that would render the performance appraisal irregular and justify setting aside the impugned decision on that basis.
Keywords:
performance evaluation; procedural flaw;
Judgment 4901
138th Session, 2024
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his performance evaluation for 2018 rating such performance as “fair”.
Judgment keywords
Keywords:
complaint dismissed; performance evaluation; performance report; rating;
Judgment 4894
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2009.
Considerations 3 and 6
Extract:
In its opinion of 1 December 2014, the Internal Appeals Committee firstly considered its role and secondly the merits of the complainant’s internal appeal. As to its role, it firstly noted, correctly, the limited role of the Tribunal in reviewing staff reports which are discretionary in nature. However, and importantly (a matter not understood by all internal appeals bodies), it said that an internal appeal body can “determine whether the decision under appeal is the correct decision or whether, on the facts, some other decision should have been made” citing Judgment 3161, consideration 6.
[…]
It is now convenient to consider the additional relief sought by the complainant. This includes that the text in his staff report for 2009 be amended by order of the Tribunal. But it has long been acknowledged that a request such as this would involve an impermissible determination by the Tribunal of what the appraisal should be (see, recently, Judgment 4786, consideration 1). The Tribunal noted in Judgment 4786 that it can, if the report was the product of one of the legal flaws listed in Judgment 4564, consideration 3, set aside the contested staff report at the same time as the impugned decision and remit the matter to the Organisation for review. However, this would be review of a report concerning the appraisal of the complainant some considerable time ago. There should be no such remittal though the complainant may gain some comfort from the conclusions of the Internal Appeals Committee (together with the observations of the Tribunal in this judgment), whose opinion should be included in his personnel file, if it is not already. It is also assumed that the present judgment will be included in his personnel file.
Reference(s)
ILOAT Judgment(s): 3161, 4564, 4786
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4893
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2008-2009.
Considerations 4-5
Extract:
It is convenient to focus on the relief the complainant seeks. [...] His primary relief, as articulated in the rejoinder, is that the Tribunal “take a final decision on the merits”. The Tribunal takes this to include a reference to a claim made in the complaint form under the heading “[r]elief claimed”, that “the text [under] productivity in [the complainant’s] staff report [for] 2008-2009 should be amended by replacing the words [‘very good’] by [‘outstanding’], and the box marking should be amended correspondingly”. […]
However, it has long been acknowledged that a request such as this would involve an impermissible determination by the Tribunal of what the appraisal should be (see, recently, Judgment 4786, consideration 1). The Tribunal noted in Judgment 4786 that it can, if the report was the product of one of the legal flaws listed in Judgment 4564, consideration 3, set aside the contested staff report at the same time as the impugned decision and remit the matter to the Organisation for review. However, the complainant now eschews any desire to have the matter remitted. Accordingly, what remains is the impermissible request to the Tribunal to undertake the evaluation itself. This claim must be rejected.
Reference(s)
ILOAT Judgment(s): 4564, 4786
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4892
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her staff report for 2008-2009 and the decision not to initiate a harassment procedure against her reporting officer.
Consideration 5
Extract:
The second subheading referred to earlier is that “[t]he contested [staff report] is unjustified”. This is tantamount to an invitation to the Tribunal to enter the issue of whether a particular assessment in a performance appraisal report is appropriate. However, it has long been acknowledged that a request such as this would involve an impermissible determination by the Tribunal of what the appraisal should be (see, recently, Judgment 4786, consideration 1). The Tribunal noted in Judgment 4786 that it can, if the report was the product of one of the legal flaws listed in Judgment 4564, consideration 3, set aside the contested staff report at the same time as the impugned decision and remit the matter to the Organisation for review. But that is done only if a legal flaw is demonstrated. It is not in the present case.
Reference(s)
ILOAT Judgment(s): 4564, 4786
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4891
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2004-2005.
Consideration 4
Extract:
Before considering the complainant’s arguments, the Tribunal finds it convenient to recall the following statement that it made in Judgment 4795, consideration 9, concerning the limited power of review that it exercises in matters of staff appraisals:
“[...] As the Tribunal has repeatedly held in its case law, assessment of an employee’s merits during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgments 4564, consideration 3, 4267, consideration 4, 3692, consideration 8, 3228, consideration 3, and 3062, consideration 3).”
In other words, given that the staff report calls for a value judgement and the exercise of a discretionary power by the responsible bodies of the Organisation, the complainant must convince the Tribunal that the EPO breached a procedural requirement, that the staff report was made without authority or by an incompetent authority, or resulted from an abuse of authority, that a manifest error of law or fact was made, or that clearly wrong conclusions were reached from the record or from the overlook of material facts (see also Judgments 4731, consideration 4, and 4713, consideration 11).
Reference(s)
ILOAT Judgment(s): 4713, 4731, 4795
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4890
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2004-2005.
Considerations 6 and 9
Extract:
The Tribunal has a limited power of review in situations involving performance appraisals of staff members. It is not the role of the Tribunal to supplant the administrative authorities of an international organisation in the assessment of the merits of a staff member. The Tribunal must rather recognize the discretionary authority of the bodies responsible for conducting such assessment which involves a value judgement. In Judgment 4795, consideration 9, the Tribunal indeed recalled the following regarding its limited power of review in matters of staff appraisal:
“[...] As the Tribunal has repeatedly held in its case law, assessment of an employee’s merits during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgments 4564, consideration 3, 4267, consideration 4, 3692, consideration 8, 3228, consideration 3, and 3062, consideration 3).”
(See also, to the same effect, Judgments 4731, consideration 4, and 4713, consideration 11.)
Moreover, in Judgment 4794, consideration 12, the Tribunal said the following in a situation where, like here, the complainant was asking that the assessment of his productivity be reviewed:
“Furthermore, aside from the fact that the Organisation has responded to the complainant’s criticisms factually, precisely and clearly in its submissions, the exercise that the complainant is asking the Tribunal to undertake with regard to the assessment of his productivity and his overall evaluation amounts in reality to a re-evaluation of his performance for 2016. However, that is a misconstruction of the Tribunal’s role, given the limited power of review the Tribunal may exercise in this matter according to its settled case law (see, for example, the aforementioned Judgment 4564, consideration 3, which was cited in the aforementioned Judgment 4637, consideration 13).”
[…] Reporting officers are not bound by ratings of previous staff reports and they must in all situations fairly and objectively assess the staff member’s productivity analysing each reporting period separately (see, for example, Judgments 4564, consideration 6, and 1688, consideration 6). […]
[I]t is not the role of the Tribunal to substitute its own assessment to the value judgement made by the competent bodies of the Organisation in their rating of the work productivity of the complainant.
Reference(s)
ILOAT Judgment(s): 1688, 3062, 3228, 3692, 4267, 4564, 4637, 4794, 4795
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
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