Staff reports and evaluations: tools for improvement or silent killers?

By Frédéric Dopagne, Saskia Lemeire and Bert Theeuwes

In a decision of 10 February 2020 (Judgment No. 4267), the Administrative Tribunal of the International Labor Organization (ILO Administrative Tribunal) was requested to rule on a staff report issued by the European Patent Organization (EPO).

An EPO staff member contested the staff report he had received and the performance ratings in this staff report on the ground that health issues had not been taken into account and that, as a result, his overall rating was lower than before. An attempt at conciliation only led to a partial adjustment, upon which the complainant lodged an internal appeal. The Internal Appeals Committee followed the complainant’s position, stating that the report should be annulled since the complainant’s health issues were not taken into account.

The decision-making authority with in the EPO agreed that the report was flawed, and decided to reassess the ratings under the condition that the complainant would submit medical evidence to the Occupational Health Service. However, as the latter found the medical evidence insufficient, the opinion of the Internal Appeals Committee was set aside and the ratings were not changed.

In its decision, the ILO Administrative Tribunal recalled that it is well established case law that the assessment of merit is an exercise that involves a value judgment (see Judgments 3006, 3228 and 3692). Because of the nature of a value judgment, the review of an assessment of merit by the Tribunal is limited in the same way as the review of a discretionary decision is limited.  Thus, the Tribunal will only interfere if:

• The decision was taken without authority;

• The decision was based on an error of law or fact;

• A material fact was overlooked;

• A plainly wrong conclusion was drawn from the facts;

• The decision was taken in breach of a rule of form or procedure;

• There was an abuse of authority.

The complaint was ultimately dismissed on all grounds.

The EPO staff member who wants to contest his assessment, thus seems to hit a wall. Internally, the Organization is not bound by the recommendations of its Internal Appeals Committee and can easily override them. Externally, the staff member will (with a few exceptions) only be able to appeal to the ILO Administrative Tribunal, which only conducts a limited review of value judgments.

In this context, staff reports or evaluations are often perceived as arbitrary and – failing strict guidelines – inconsistent, depending on the person giving the evaluation. Whereas these reports are meant to be tools for improvement, they could be perceived as ways to slowly discredit staff members and halt their careers.

Previous case law of the Tribunal had left the door ajar for an (indirect) judgment on assessments of merit. In a 2012 Judgment, the Tribunal quashed such assessment by the EPO President on the grounds that it was contrary to the recommendation of the Internal Appeals Committee, as the former had first decided to follow the recommendation: “The Tribunal notes that the President decided to follow the Internal Appeals Committee’s recommendation with respect to the comment on productivity; however, the new comment was not in line with that recommendation. As mentioned above, the Committee found that the complainant’s productivity was “in the middle rather than at the lower end of ‘good’”, which is not the same as stating (as the Organisation did) that the complainant’s productivity was “in the lower half of good.” Without pronouncing directly on the assessment itself, the Tribunal ruled “that the appropriate equivalent of being “in the middle […] of good” is a comment of “solid good”. It follows that the impugned decision, being contradictory in that respect, is flawed, and that the complaint is therefore well founded.” (Judgment No. 3062, cons. 3).  

At present, the Tribunal seems to be more reluctant when it comes to staff reports. Whether the door to a judgment on assessments of merit has been completely closed again since Judgment No. 4267, however, remains to be seen.