Explanatory Memorandum to SEC(2010)734 - ANNUAL ACTIVITY REPORT OF THE MEDIATION SERVICE OF THE EUROPEAN COMMISSION 2009 in accordance with Article 5(1) of the Commission Decision - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | SEC(2010)734 - ANNUAL ACTIVITY REPORT OF THE MEDIATION SERVICE OF THE EUROPEAN COMMISSION 2009 in accordance with Article 5(1) of the ... |
|---|---|
| source | SEC(2010)734  |
| date | 21-06-2010 |
Contents
REPORT TO THE COMMISSION
ANNUAL ACTIVITY REPORT OF THE MEDIATION SERVICE OF THE EUROPEAN COMMISSION 2009
in accordance with Article 5(1) of the Commission Decision
ANNUAL ACTIVITY REPORT
OF THE MEDIATION SERVICE OF THE EUROPEAN COMMISSION
2009
of the Commission Decision of 4 March 2002
TABLE OF CONTENTS
1. INTRODUCTION........................................................................................................4
2. GENERAL FRAMEWORK........................................................................................4
3. TYPES OF CASES......................................................................................................5
3.1. Overview......................................................................................................................5
3.2. Statutory rights and obligations...................................................................................6
3.3. Relationship conflicts in the workplace and harassment.............................................6
3.3.1. Methodol ogy................................................................................................................6
3.3.2. Analysis of cases..........................................................................................................7
3.3.3. Potential solutions........................................................................................................7
3.4. Social component.........................................................................................................8
4. RECOMMENDATIONS.............................................................................................9
4.1. Follow-up of the recommendations of the 2008 annual report....................................9
4.1.1. Contract staff................................................................................................................9
4.1.2. Application of Article 24 of the Staff Regulations......................................................9
4.1.3. Fast-tracking mobility..................................................................................................9
4.2. New recommendations...............................................................................................10
4.2.1. PMO services.............................................................................................................10
4.2.2. The 'over 50s'............................................................................................................10
4.2.3. The status of grant-holders in the Joint Research Centre (JRC)................................10
5. FINDINGS................................................................................................................. 11
6. ANNEXES.................................................................................................................12
INTRODUCTION
1.
In accordance with Article 5(1) of Commission Decision C(2002) 601 of 4 March 2002 setting up a reinforced Mediation Service, the Commission Mediator is required to submit an annual report to the Commission. This report concerns the activities of the Mediation Service in 2009, which is the second reference period since the new Mediator took up office in February 2008.
Continuity, consolidation and development have been the focus of the Mediation Service's work in 2009. These objectives influenced the Service's working principles as well as its methods and instruments for action. Independence, impartiality and confidentiality have been the three strategies which have continued to guide the Mediator's approach.
In 2009, the Mediation Service handled 370 cases, a considerable increase compared with the previous year (257 cases). In addition, 73 cases which could not be completed the first year were also processed, with a solution being found in 2009 for over half of them.
The findings of the 2008 report advocated measures to improve good administration and made specific recommendations to the Administration. Section 4 of this report describes steps taken by the Administration in this direction. Further recommendations are presented at the end of the report.
2. GENERAL FRAMEWORK
In accordance with the abovementioned decision, the Service's work, as in 2008, was carried out with strict observance of confidentiality, on the basis of three essential parameters (complementarity of action with other departments, pursuit of a conflict management policy and creation of a true mediation culture).
The Mediator's activities underpin and supplement the work of the Institution in terms of the professionalisation of human resources policy. One of the key instruments of complementarity of action, dedicated contact points, was further reinforced and consolidated in 2009. Mutual trust between human resources managers and the Mediation Service has been the main element in the success of this approach. The possibility of rapid contact with the departments directly concerned by a case is essential for trying to find an appropriate, balanced solution. However, despite the progress made, contacts in some Directorates-General should be further developed.
Since the Mediation Service was reinforced in 2008, it has made considerable efforts to transform the conflict and confrontation approach into a culture of mediation. Not only does the rise in the number of cases brought by Commission staff demonstrate this ability to settle disputes in a less formal and confrontational way, but it also, and above all, it demonstrates the will of management to try and find an amicable solution by referring cases directly to the Mediation Service. This approach deserves to be underlined and encouraged. It proves that some Commission departments are starting to become aware of the added value provided by solutions involving mediation.
TYPES OF CASES
3.
3.1. Overview
The Mediation Service is available to over 30 000 officials and other agents of the Commission. To facilitate matters for staff in the various Institution premises located outside Brussels, the members of the Service carried out several missions to Ispra, Seville, Luxembourg, Geel, Karlsruhe and Petten.
The number of cases dealt with in 2009 (370) means a 50% increase compared with 2008. The two main categories of cases referred to the Service are: issues relating to statutory rights and obligations, and relationship conflicts, including harassment. Problems relating to statutory matters account for over half of all cases (203 cases). Relationship problems represent approximately 42% of the cases (155 cases). A certain number of cases have a significant social component, involving particularly delicate family, medical or even financial situations.
The abovementioned decision states that oral or written recommendations to resolve a dispute can be made with respect to complaints lodged pursuant to Article 90(2) of the Staff Regulations. While several complaints may have been avoided following intervention by the Mediator in accordance with Article 90, the Mediation Service would like to underline the fact that it has not yet been possible to carry out a more dynamic and systematic analysis of complaints submitted to the Administration pursuant to this Article. This is mainly due to a lack of resources and the resulting excess workload borne by the Service.
This excess workload explains why, in 2009, the Mediator had to establish priorities in order to handle the cases referred to her. Out of the 370 cases concerned, roughly 78% were completed, while 18% are still in progress or pending. A small percentage - 4% - concerns cases which were rejected or assigned to another department.
There are three kinds of activities performed by the Service. Impartial advice can be given to Commission staff (47%), the Mediation Service can intervene with respect to Commission departments (32%), always with the prior agreement of the party concerned, or actual mediation can be organised (18%). Two structured interventions led to the Mediator making a written recommendation. The Mediator is pleased to note that these recommendations were scrupulously followed by the Directorates-General concerned.
There has been a slight increase in the number of cases (65 compared with 44 in 2008) of mediation in the strict meaning of the term, as a tried and tested technique used to settle disputes. This approach must, however, be further developed in future. Greater efforts by the Institution to proceed with amicable settlements would be welcomed, as stated also in the general comments of the Civil Service Tribunal's annual report1.
"[...] It proved possible to bring only two cases to a close following an amicable settlement at the instigation of the bench hearing the action. The Civil Service Tribunal takes the view that this rather unsatisfactory figure is in large part attributable to the often reluctant attitude of the parties, and the institutions in particular, although in many instances, the case was suitable for amicable settlement and there was a genuine chance of reaching such a settlement". (Proceedings of the Civil Service Tribunal in 2009, page 1).
3.2. Statutory rights and obligations
The experience acquired in 2009 in handling cases of statutory rights and obligations confirms the trends already mentioned in the previous report. The main reasons for the disputes between Institution staff and the Administration which were identified that year unfortunately still apply, in particular as regards the excessively restrictive and routine application of the Staff Regulations.
Of the 203 cases concerned, examination of some was temporarily suspended by the Mediator. It is worthwhile highlighting some aspects which constitute grounds for a refusal by the Mediation Service. The Mediator has no intention of replacing the competent Commission departments in terms of everyday handling of cases. This point concerns the PMO and DG RELEX, Directorate K, in particular. A large number of cases submitted to the Mediation Service were intended simply to obtain an answer from the Administration, which had not responded within a reasonable period of time. Since mediation can start only once the arguments of both parties have been properly identified, the Mediation Service was unable to intervene until the Administration had formulated its initial position. This is why cases have been rejected or suspended.
The problems relating to rights and obligations have to do with the content of the Staff Regulations, which is why the complaints submitted to the Mediator have virtually the same characteristics as in the previous report.
As in 2008, an important customer for the Mediation Service was DG RELEX. At the request of the management of this Directorate-General, the Mediation Service conducted a factfinding mission outside the EU in relation to a specific case. This particularly complex case based partly on the interpretation of national legislation concerning the compliance of the contractual situation of the agents concerned had been settled by the Mediation Service in another delegation. Following a thorough examination and thanks to the very good cooperation of the Directorates-General concerned, it proved possible to find an amicable and satisfactory solution for all the parties concerned, including the Administration.
The 2008 report referred to persisting problems involving the PMO and the application of Article 85 of the Staff Regulations (recovery of undue payments), in particular as regards a lack of relevant information and failure to provide justification for decisions. The experience acquired in the cases handled in 2009 prompts the Mediator to raise a new and not insignificant point. While the Administration can invoke Article 85 to remedy an error committed, a certain number of cases have shown that the conditions governing recovery that are laid down in this Article are not always properly examined or, consequently, properly applied.
3.3. Relationship conflicts in the workplace and harassment
In 2009, 155 people contacted the Mediation Service about problems relating to relationship conflicts in the workplace or harassment (moral and sexual), which account for 42% of all the cases handled by the Service.
3.3.1. Methodology
In terms of methodology, the special nature of the approach developed by the Mediation Service is that it triggers a dynamic process of efforts to find a solution. The key element of this approach is the confidential, personal interview, which makes it possible to identify the type of problem, the seriousness of the situation and the available resources, so that potential solutions can be pinpointed.
The other aspect which the Service has endeavoured to take into account where possible is the dialogue with the alleged harassers, who represent the other side of the coin. This preventive approach favoured by the Service means that problematic behaviour is not stigmatised, and a genuine attempt at clarification can be undertaken with the parties concerned. The aim is to get beyond a dialectic based on the opposition between true and false, and guilty and innocent, which is the territory of a formal judicial approach, in order to concentrate on the dysfunctional aspects of behaviour.
Subsequent in-depth discussion of the situation is the routine approach adopted by the Service. A conflict or case of alleged harassment can sometimes conceal the malfunctioning of a department, structural shortcomings, management flaws or a personal problem.
3.3.2. Analysis of cases
In 2009 the Service worked on some particularly complicated cases, which involved several people rather than the usual scenario of a bilateral relationship, thereby making the case more complex.
From the viewpoint of the persons involved, there were far fewer cases of harassment/conflicts in relations with colleagues (horizontal relations) than in relations with management (vertical, descending); therefore this has remained the same compared with the previous year. This point confirms the fact that position in the hierarchy is still a key element in conflicts. Management style also appears to play a quite important role. It is also worthwhile pointing out that a small percentage of cases consisted of complaints from managers who felt they were being attacked by a subordinate (vertical, ascending). In some cases, there were false accusations of harassment made against bosses or colleagues which the Mediation Service was able to foil by uncovering hidden agendas.
Generally speaking, what characterises cases in this category is the fact that people experiencing quite difficult relations at work risk getting caught up in a vicious circle of exclusion. Given the current situation at the Commission, mobility is extremely difficult in the event of a problem of this kind. This causes serious problems for people who are forced to change their working environment following a conflict, and they run the risk of becoming locked into a vicious circle.
The Mediation Service also identified cases in which human relations issues took the form of a 'strategic', active exclusion mechanism, which seemed to be based on objectives bearing no relationship to the abilities of the person concerned. Such a situation implies obvious psychosocial risks for the persons targeted and undermines the ethical behaviour rules and values of the Institution.
3.3.3. Potential solutions
Generally speaking, the main features of relationship conflicts and, even more so, harassment, are the implications, which can be very serious for the victims, even if they are only alleged victims during the informal procedure.
In many cases, therefore, if the situation is not reversible through active mediation between the parties, a solution must be found involving the prompt separation of the parties involved, in accordance with Decision C(2006)1624/32. Separating the parties concerned means reassigning one of the two people involved in the dispute, or even both in exceptional cases. In a normal mobility procedure, it is very difficult, however, to find an alternative post because of the structural shortage of vacancies. The 'age' factor (over 50) can complicate matters even further.
That is why, in properly identified problematic situations and in cases where there has been no alternative to separation, the Service has negotiated relatively rapid transfers with the Directorates-General concerned, with a budget allocation, for a period limited to one year at most. Because the post is 'lent' for a year, the Directorate-General which is 'lending' the person thus signals its willingness to allow the person to 'return' even before the period is complete. The Service could also propose an exchange to fill the vacancy created as a result. This is what allows the fast-tracking system to remain in constant movement, so that the number of posts lent and the number of people returning to former posts tend to offset each other.
The Service obtained positive results overall when it organised 24 transfers (one in the context of COMPAS), with the active cooperation of the human resources managers of the Directorates-General concerned. It thus managed to get people back to work who had been on sick leave for long periods as a result of a relationship conflict or alleged harassment. A simple arithmetic calculation of the days on which certain people were absent, which takes account only of the most significant cases, produces a figure of up to 2000 days. In some cases, specific support measures such as coaching have also been introduced with the cooperation of the Administration.
This approach makes it possible to break the vicious circle of exclusion, which can be very serious in some cases. The Institution thus avoids the risk of further penalising people in a temporarily weak situation and sidesteps the classic safety valve, which is the last resort of potential victims: long-term sick leave, the forerunner of disability.
3.4. Social component
A certain number of cases comprise a predominant social component consisting of a combination of medical and even financial aspects. People are often prompted to consult the Mediation Service after having tried other solutions unsuccessfully for a long time, sometimes without even having obtained any advice or a sympathetic ear. Such people sometimes develop a feeling of injustice, which undermines their productivity in the Institution.
Contacts with DG ADMIN and other Commission departments have proven to be extremely positive when looking for solutions in this respect, enabling half of the cases of this type to be resolved. The Service considers that it is in fact through particularly careful management of cases with social components that the human face of the Institution can be improved.
"Where there are signs of psychological or sexual harassment, one option which may be envisaged is to move one of the parties concerned (within the DG or to another DG). This measure may take the form of a reassignment in the interests of the service, and may involve the victim (preferably with his or her agreement) or the alleged harasser (following an interview with the competent DG)". (Commission Decision C(2006) 1624/3 of 26 April 2006 on the European Commission policy on protecting the dignity of the person and preventing psychological harassment and sexual harassment, paragraph 6.2.3).
RECOMMENDATIONS
4.
4.1. Follow-up of the recommendations of the 2008 annual report
Measures to improve the Administration's functioning were put forward in the previous report: quality of information, fast action, in particular in the case of conflicts or harassment, the right person in the right place, the development of managers' relationship skills, and the use of coaching. These measures apply now more than ever. Specific recommendations were also addressed to the Administration.
4.1.1. Contract staff
The Mediation Service had identified a problem linked to the difficulty faced by some contract staff members who had passed a selection procedure for a higher function group in receiving credit for all of their professional experience. It was pointed out that if this situation continued, it could prove to be highly demotivating and contrary to good administrative practice. The Mediator is pleased to see that the Administration is willing to examine this situation. DG HR is in the process of finalising new general implementing provisions which should enable all experience acquired by contract staff members to be taken into account, as regards the criteria applied both when they are recruited and when they are classified in grade and step, provided that it has been acquired in one of the Commission's sectors of activity. The Mediation Service will carefully follow the efforts in this domain until they are concluded.
4.1.2. Application of Article 24 of the Staff Regulations
The Mediation Service had also recommended that guidelines be drawn up for applying Article 24 of the Staff Regulations. The Mediator takes note of the fact that informal procedures were recently introduced to coordinate better the work of the various departments involved in managing and monitoring requests made pursuant to Article 24.
The Mediator would have preferred to see clear guidelines established in this domain. In addition, with regard to investigation procedures which have led to the dismissal of a case, she agrees with the Administration that a case-by-case approach could be a good option to assess whether specific compensation should be granted.
4.1.3. Fast-tracking mobility
The Mediation Service had also recommended fast-tracking mobility to solve some types of cases, in particular relationship conflicts. However, the Mediator regrets that the Administration is reluctant to establish a new formal interdisciplinary structure. Nevertheless she recommends more flexibility in the COMPAS3 mechanism so that she can solve the cases referred to her more quickly.
COMPAS (coordination of medical, psychosocial and administrative assistance) was set up in accordance with the communication of 26 April 2006 on management policy on absence for medical reasons and invalidity. It is a special coordinating structure involving all departments working in the social, psychological and medical sphere that makes it possible to fast-track mobility and any subsequent reassignment of duties, if necessary.
New recommendations
4.2.
4.2.1. PMO services
The Mediation Service notes that a large number of pecuniary cases arise from systemic problems identified at the PMO. In its 2008 annual report, the Mediation Service had already pointed out that the excessively rigid and impersonal approach to cases by the PMO could have adverse effects on individual staff entitlements. Mention was also made of the need for advance warning of a recovery procedure and explanations as to why it would take place. From the experience acquired in handling cases concerning the PMO in 2009, however, the Mediator would confirm that the situation is still the same. The success of a file still depends all too often on the goodwill of individual desk officers. The Mediation Service would point to the lack of a coherent, coordinated, proactive approach by some PMO services.
A change of attitude by the people who are in the frontline is also necessary to avoid situations where a staff member is simply poorly informed or not properly directed to the PMO unit which is actually competent.
The Mediation Service recommends a thorough examination of the reasons for this situation in order to guarantee the fundamental principles of good administration, team spirit and duty of care, while reinforcing the positive image of the Institution's reputation.
4.2.2. The "over 50s”
Of all the cases in 2009, the AD 12 category is by far the biggest group. This should probably be looked into carefully by the Administration since this is a pre-retirement category which is often confined to very secondary roles. In particular, looking at grades AD 12 and AD 13 together, the Mediation Service has learnt from experience that the Institution could make better use of the resources represented by the over 50s who are not in management positions by taking care to define their tasks and responsibilities and giving them real objectives. These situations sometimes result in people being kept on the sidelines, which can lead to demotivation, a great loss of self-esteem and often health problems for the people affected, and a considerable loss of expertise for the Institution since these staff members have very high potential.
The Mediator considers that the Administration should examine this situation thoroughly in order to find the best way of making the most of this huge reservoir of expertise which is crying out to be properly used. At a time of zero-growth of human resources, this potential could represent a real asset for the Institution.
4.2.3. The status of grant-holders in the Joint Research Centre (JRC)
The Mediation Service asks the Administration to define a coherent, definitive solution to effectively regulate the administrative status of Commission grant-holders in all the JRC sites. The solution should ensure, on the one hand, the fast-tracking of the recruitment procedure for agents with very specialised skills that match the specific needs of the JRC and, on the other, compliance with the basic rules of non-discrimination and equal access that are found in staff regulations everywhere.
The Mediator asks the Administration to ensure that the conclusions of the political consultations held at the end of 2009 are taken into account fully during the work of amending the general implementing provisions for contract staff, in particular to enable JRC grant-holders to be recruited as contractual staff members following specific selection procedures organised by EPSO.
5. FINDINGS
The Mediation Service wishes to thank all the departments of the Institution which cooperated with it for their readiness to help and assistance in finding solutions in the specific cases it has had to handle.
The experience acquired in handling these cases clearly shows that geographical distance is a significant and unfavourable factor. A very large number of people who contacted the Service live and work outside the Institution's headquarters. Distance would appear to promote the emergence of disputes and can even intensify them, making it more difficult to find solutions. Given this, and based on the requests submitted to her, the Mediator is concerned about the fact that it is impossible for staff in the executive and Community agencies to have recourse to a mediation body. Thus, given the efforts being made to establish the new European External Action Service, the Mediator considers it advisable to make the Administration aware of this potential risk.
The Commission Mediator takes the firm view - already expressed in her previous report -that the shift to a culture of mediation, prevention and management of conflict based on ethical principles is a complex dynamic process that needs to be developed and strengthened. This exercise cannot succeed without the full commitment of the Administration, staff representatives, each and every official and agent of the Institution, and the management and Commissioners.
6.
200
180
160
140
120
100
80
60
40
20
0
State of play at 31/12/2009
184
I
| 102 | ||
13
Number of Number of Number of Number of Number of cases resolved cases closed ongoing cases pending cases cases refused
Number of cases reassigned
Type of intervention
180
160
140
120
100
80
60
40
20
0
Type of cases
180
160
140
120
100
80
60
40
20
0
Status of complainants
EN 16 EN