Bonum Certa Men Certa

Legal Analysis Reveals That EPO Principal Director for Human Resources (Bergot) Resorts to “Gross Violation of Due Process”

Summary: Why the EPO's attack on staff representatives is so outrageous, based on a legal letter sent to the UN's Special Rapporteur for Freedom of Speech and Expression, Special Rapporteur for Freedom of Association, Special Rapporteur for Human Rights Defenders, Jesper Kongstad (Administrative Council), and Director of the Netherlands Patent Office

IN order for people to understand just how out of line the EPO's management has stepped, at this point in time we may need to show some legal documents which explain what the EPO's management is actually doing.



The lawyers' response which we published here earlier today we now have in textual form. This reply is important as it helps highlight some of the things wrong with the EPO's approach. It was also copied to some staff at the United Nations.

Having received it from several sources (not just one), we now wish to post this as HTML. "This one is already two-weeks old," told us one source, "but just came out." This source is aware that many people are becoming aware of this response (as they probably ought to). "It will probably reach you by more than one correspondent," we were rightly told.

Here it is without any annotation or emphasis:

SCHWAB | FLAHERTY | ASSOCIES

Attention : Nouvelle address 7, rue de Candolie CH-1205 Geneve

Alexandre J . Schwab Avocat - MBA

Edward Patrick Flaherty Attorney at law - Member of the US Supreme Court and Massachusetts Bar Membre de l'Ordre des Avocats de Geneve

Michael Ford Shanahan Attorney at law - MBA Member of the US Court of Appeals for the Armed Forces and Colorado Bar

Can Burak Bayhan Attorney-at-Law Economist/stock & FX Expert Member of the Istanbul Bar Association

Monika Ona Bileris Attorney- at-Law Member of the New York Bar (USA)

RECOMMANDEE & PAR COURRIEL

Mr Jesper Kongstad Director General Danish Patent and Trademark Office Helgeshoj Alle 81 2630 TAASTRUP DANEMARK e-mail: -

Mr Derk-Jan De Groot Director--Netherlands Patent Office P.O. Box 10366 2501 HJ DEN HAAG PAYS-BAS e-mail: -

Geneva, 23 November 201:5

Concerne: Ms Elizabeth Hardon v European Patent Office (EPO)

Dear Sirs:

Further to my three (3) prior letters to you concerning my client, EPO Staff member Ms. Hardon, dated 8 and 21 October, and 11 November 2015, respectively1 by which we __________________________________ 1 These letters detailed a number of procedural and substantive detects in the pending disciplinary proceedings against Ms. Hardon, which are clearly directed against her on account of her actions in her capacity, to wit: *the charge letter of 4 September 2015 (case N€°. - --detailed in my letter and attachments of 8 October 2015) did not state the name of the complainants (in violation of ILOAT Judgment N€° . 2014 which holds that it is "contrary to due process to require an accused staff member to answer unsubstantiated allegations made by unknown persons"), the source of the purported statements asserted as misconduct in the letter, or any evidentiary basis for the initiation of the investigation against Ms. Hardon. *the charge letter of 4 September makes clear that the claims against Mr. Hardon (that she "orchestrated and promoted" a harassment campaign against an EPO colleague, and that she later attempted to intimidate other staff representatives) were based on confidential meetings of the Local Staff Committee in Munich, which is both an egregious breach of confidentiality as well as the right of all EPO staff members to exercise their freedom of speech and association. *the charge letter of 4 September claims that a single (indeed misquoted) sentence expressed in a confidential discussion among duly elected EPO staff representatives, and at best an assertion of an opinion rather than one of fact, amounts to actionable "harassment". *As indicated in my letter of 8 October, the charges of 4 September 2015 are very similar to specious harassment charges brought against Ms. Hardon nearly two years ago, also in her capacity as a staff representative, also based on a single sentence, expressing the collective opinion of several staff representatives, contained in a confidential email sent to 16 recipients who were either elected staff representatives or experts retained by such




Page | 2

demanded that you initiate an independent investigation into her claims of institutional harassment, Ms. Hardon was now been advised by letter dated 17 November 2015 from the Principal Director for Human Resources, - , that she was suspended immediately from service until further notice, on the basis of allegations of alleged harassment detailed in my prior letters to you referenced above (extract attached). Additionally, Ms. Hardon is now accused of conspiring with a suspended EPO staff member from DG3 "to systematically and repeatedly disseminate defamatory information", and to have communicated "with various members of news outlets, throughout 2013 and 2014, disclosing without authorisation non-public information". It appears obvious that the Office will move swiftly to terminate Ms. Hardon' s appointment, which has clearly been its bad faith intention all along.

Ms. Hardon has denied any and all allegations of misconduct against her and continues to do so. The latest specious and vexatious allegations of misconduct now form the subject of yet another disciplinary proceeding. This brings the number of disciplinary complaints which are being simultaneously prosecuted against her to three (3). In and of itself, this would tend to confirm her assertions of institutional harassment. It also makes it clear that the latest allegations can only be seen as a further, irregular continuance of the institutional harassment alleged in the previous demand letters. This is particularly true in view of the fact that one of the procedural defects detailed in my letter to you of 11 November 2015 (namely, that Ms. Hardon's accuser was not disclosed to her) has now been resolved in part with the revelation that the complainant is in fact -, the EPO Principal Director for Human Resources. The fact that the complainant is the very same person who is prosecuting all three disciplinary cases against Ms. Hardon is in itself a gross violation of due process.

The suspicion of serious procedural irregularities is further supported by the fact that a considerable number of critical documents to which Ms. Hardon is entitled to review as part of her fundamental right of defence were missing from the annexes to the letter informing Ms Hardon of Disciplinary Procedure N€°. D - dated 17 November 2015 (attached). Her response and request for such missing documents is also attached hereto.

Additionally, it is our information and belief that the Enlarged Board of Appeal decision (Art. 23/15 of 17 September 2015) found that the charges against the staff member primarily accused in case C- and the related case - were not substantiated. Accordingly, it is __________________________________ representatives. Despite the irregular and ultra vires finding of the Investigative Unit that the charges were "founded and proven", the responsible Disciplinary Committee, properly mandated to evaluate whether the conduct of Ms., Hardon was incompatible with several articles of the EPO Service Regulations, found unanimously in Ms. Hardon's favor and rejected the charges against her, recommending that the President close the proceedings and reimburse her legal fees. Despite this unanimous recommendation, the President imposed a down-grading upon Ms. Hardon, which decision is under appeal at the ILOAT. They also parallel prior false charges of harassment levied against Ms. Hardon for "campaigning against" another staff member, which charges were set aside by the ILOAT in its Judgment N€°. 2984. *As pointed out in my letter and attachment of 8 October, the initiation of repeated disciplinary proceedings against Ms. Hardon on the basis of specious and frivolous misconduct charges, all of which to date have been rejected by the EPO Disciplinary Committee and the ILOAT, is further incontrovertible evidence of the EPO's ill will towards Ms. Hardon in particular and its bad faith against staff representatives generally, which numerous hostile and intimidating attacks against her personally have set back Ms. Hardon's career leading to financial as well as professional injury, damage to her dignity and reputations, causing significant injury to her health. *Ms. Hardon's suspicion that she is the target of an orchestrated campaign by senior EPO officials to drive her out of the Office on false grounds is confirmed in her letter attached to my letter to you of 21 October 2015, where it is revealed that the complainant in Case N€°- is not the staff member alleged to have been harassed, but in fact - who is also prosecuting the case against Ms. Hardon, a further gross violation of fundamental due process.




Page | 3

a legal impossibility for Ms. Hardon to have been an accomplice with her colleague when his actions were not found to be misconduct, requiring that all charges against Ms Hardon arising out of case C- and the related case C- be forthwith dismissed.

Finally, at the point in time when the Investigation Unit invited Ms. Hardon to comment on the summary of findings in the latest investigation case C- the Office Administration had already decided to initiate a disciplinary procedure against her incorporating allegations from Case-. This action on the part of the Office Administration appears to have been motivated by her actions in rightly declining to submit to an interview when she had already been identified as a target of the subject investigation2>. Her "refusal" to attend an interview pending clarification of deficiencies in the invitation was not in any way a refusal to cooperate with the investigation. The Office Administration has apparently responded by making the allegations from C- the subject of a disciplinary action (see enclosed annex) despite the fact that the case had not yet been closed. As a matter of fact, at the point in time when the disciplinary report was issued, i.e., 17 November 2015, the deadline for the submission of Ms. Hardon's written comments on the summary findings pursuant to Art. 18 (1) of the EPO Investigation Guidelines (which was set for 23 November 2015) had not yet expired. In addition to violating the cited jurisprudence, these actions would also appear to be in breach of Art. 18 (2) and (7) of the EPO Investigation Guidelines and, moreover, would appear to undermine the integrity of the investigation.

You have thus far failed to take any action in response to Ms. Hardon's requests for an investigation into the harassment claims against her, in violation of applicable ILOAT jurisprudence3. On behalf of Ms. Hardon, I therefore repeat once again her request for an

__________________________________

2 In the recent UNDT decision Judgment No. UNDT/2011/081 (Cabrera), the level of due process to which an international civil servant is entitled when he or she becomes of the "target" of a misconduct investigation was clearly stated: "In conclusion, the Tribunal is of the opinion that the assurances of due process and fairness ... mean that, as soon as a person is identified, or reasonably concludes that he has been identified, as a possible wrongdoer in any investigation procedure and at any stage, he has the right to invoke due process with everything that this guarantees. Moreover, the Tribunal finds that there is a general principle of law according to which, in modern times, it is simply intolerable for a person to be asked to collaborate in procedures which are moving contrary to his interests, sine processu."

"It is a fundamental principle of due process that where an individual has become the target of an investigation,then that person should be accorded certain basic due process rights ...as soon as a person is identified, or reasonably concludes that he has been identified, as a possible wrongdoer in any investigation procedure and at any stage, he has the right to invoke due process with everything that this guarantees. Moreover, the Tribunal finds that there is a general principle of law according to which, in modem times, it is simply intolerable for a person to be asked to collaborate in procedures which are moving contrary to bis interests, sine processu."

ILOAT Judgments No. 2475 and No. 295 also confirm this view, dictating that investigations must "be conducted in a manner designed to ascertain aU relevant facts without compromising the good name of the employee and that the employee be given an opportunity to test the evidence put against him or her and to answer the charge made."

The fundamental requirements of due process set out above have indisputably been egregiously ignored in Ms. Hardon's case to date, which she shall vigorously contest in all fora available to her.

3 ILOAT Judgment N€°. 3485 at consideration 16: "It is not controverted that some of [the complainant's] complaints went unanswered. This shows that there was a degree of indifference regarding his express concerns. This was not only another aspect of harassment but also a breach of the ICC's duty of care towards the complainant which, in addition to the breach of due process, entitles him to moral damages [...]." And ILOAT Judgment N€°. 3377 at consideration 14: "The evidence further shows that the Organization also breached its duty to ensure that his complaints were addressed in a proactive manner ....", and at consideration 26: "Firm precedent has it that when an official makes allegations of harassment, she or he is entitled to have




Page | 4

immediate, independent investigation by an external authority into her harassment allegations, including the most recent specious allegations against her, and further, that you take immediate, meaningful interim measures to stop such alleged institutional harassment of Ms. Hardon, including the lifting of her irregular suspension, and prevention of EPO's intended imminent termination of her appointment. Please treat this demand as a further request for a final administrative decision.

Thank you for your courtesy and attention; we look forward to your prompt reply.

Enclosures Cc: client UN Special Rapporteur for Freedom of Speech and Expression UN Special Rapporteur for Freedom of Association UN Special Rapporteur for Human Rights Defenders

__________________________________ them dealt with in accordance with the rules and procedures in force (see Judgment 2642, under 8). If an organisation fails to do so, it breaches not only its own policies and rules, but also its duty of care towards the official."

And ILOAT Judgment N€°. 3347, at consideration 14: "However, given the serious nature of a claim of harassment, an international organization has an obligation to initiate the investigation itself in a timely manner and the corollary obligation of ensuring that the internal body responsible for investigating and reporting on claims of harassment has the necessary resources to carry out that responsibility (see Judgment 3069, under 12)."

And Judgment N€°. 3337 at consideration 11: "The Tribunal has consistently stressed the serious nature of allegations of harassment in the workplace and the need for international organisations to investigate such allegations promptly and thoroughly. This is a function of the organisation's duty of care to its staff members to uphold their dignity. [... ] €»



There may still be some typos or unintentional omissions above. The intentional omission is the name Bergot (c/f part one, part two, part three, and part four of "EPO: It's Like a Family Business"), which isn't just engaging in some kind of 'cat fight' here as she is clearly the "complainant [and also] the very same person who is prosecuting all three disciplinary cases against Ms. Hardon" which is "in itself a gross violation of due process."

Comments

Recent Techrights' Posts

Links 28/03/2026: Microsoft's LinkedIn a National Security Risk, Microsoft's Slop "Ambitions Face Investor Scrutiny Amid Soaring Costs"
Links for the day
SLAPP Censorship - Part 26 Out of 200: Asking for Documents and Information You Already Have, Even Letters and E-mails That You Yourself Sent!
barristers are expensive
 
Open Web Destroyed by Centibillionaires, Says Anil Dash of Blogging Fame
Blogging was going through its 'prime years' about 20 years ago
"Linux" Slop Going Away, Microsoft et al Pay 'Linux' Foundation to Promote Slop
It's a timely reminder that the Linux Foundation exists to promote whoever pays the Linux Foundation, even pedophiles and companies that attack the GPL
Gemini Links 28/03/2026: "Finding My Base Tone", "Astrobotany", and BugoutBack/OFFLFIRSOCH
Links for the day
Links 28/03/2026: More Worldwide Bans on Social Control Media (Harms to Adolescents), Protests in US Against Dictatorship
Links for the day
Gemini Links 28/03/2026: Echo Delay and 0x0.st
Links for the day
Rumours of More IBM Mass Layoffs at Beginning of April
IBM is not doing well
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, March 27, 2026
IRC logs for Friday, March 27, 2026
"Headcount" as Distraction From Mass Layoffs and Salary Reductions
Things aren't looking well when one considers revenue is acquired, not earned
"Linux" Slop Turning Rarer, New York Times Nowadays Contaminated With LLM Slop
Another day has passed without much slop about "linux"
Links 27/03/2026: Studying Whale Births, Apple is Cancelling Products, Cambodia Arrests Journalists Over Photographs
Links for the day
Gemini Links 27/03/2026: GTD, Gopher Catchup, Gemini Crawlers, and "Slop Everywhere"
Links for the day
Mozilla Was Ruined Like Sirius Open Source Was Ruined - From the Top Down
Mozilla will never return to its Free software roots
Nokia Could Never Recover From Microsoft
It's very important to remember what really happened
Why Techrights and Many Other Sites Stopped Doing April Fools’ Day Articles
Well before slop (made by LLMs) it was "bad optics" to have satire or humour in a site, irrespective of the day of the year
President Not-Cocaine Campinos Notified of Historic EPO Strikes (Thousands of Workers Not Coming Back to the Office)
Please do pay attention to how the media treats these strikes in Europe's second-largest institution
Slides From the Presentation Discussing EPO Strikes Until End of June or Until End of 2026 (Maybe Next Year Too)
More to come soon (later today)
IBM Cuts Are Everywhere (Global), the Aim is to Lower the Pay
Because the revenues keep falling (IBM buys other companies' revenues using borrowed money)
Perpetual Strikes to Begin at European Patent Office (EPO), Large Majority Votes for Strikes Any Day of the Week
Approved industrial actions [...] Notice how none of the media or even so-called 'IP' blogs write about it
Mozilla is Not a Privacy Company, Mozilla is Run by GAFAM Executives and Managers Who Came From American Surveillance Companies
Would you trust a VPN they claim to be "free"?
SLAPP Censorship - Part 25 Out of 200: That Time Matthew J. Garrett Got Temporarily Banned/Suspended From Twitter
That he gets banned from large social control media platform is hardly surprising given his combative communications
Ubuntu Started as Free With ShipIt, Now It Becomes Payware That Exploits Debian Volunteers (Slaves)
"Ubuntu" the distro now replaces the GNU components inherited from Debian with a bunch of Microsoft GitHub (proprietary) things that reject reciprocal licences
Last Night The Register MS Published a Fake Article. It Mentioned "AI" 27 Times.
Paid-for nonsense! [...] What's left of once-respectable news sites actively harms society
Links 27/03/2026: Google Executive (GAFAM, US, Surveillance) "Named the New BBC Head", Prominent Climate Scientist Resigns From NASA
Links for the day
Gemini Links 27/03/2026: "Being Busy" and "Posting Again"
Links for the day
GNOME Has No "Real" Executive Director, Only an IBM (Perma)'Interim' One With No Openings in Sight
GNOME is having financial problems
Microsoft Experiencing "Leadership Exodus"
Microsoft's current position is no better than Meta's (Facebook)
GNU/Linux Distros Should Reject "Age Verification" and Uphold Software Freedom for Users
It's not about protecting children
Slop Plunge
we can already "smell the blood" of the so-called 'AI industry'
IBM Media Puff Pieces While Layoffs Go On and On
Has the PR industry absorbed the press?
Media Says Microsoft Hiring Freezes, But There Are Already Microsoft Layoffs
They want the public to talk about Microsoft as if it's just not hiring when it is actually firing
Richard Stallman lynchings: Sruthi Chandran splitting Debian
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, March 26, 2026
IRC logs for Thursday, March 26, 2026
Links 26/03/2026: Tor Relay at National Taiwan Normal University, Copyright Hammers Fall
Links for the day
Gemini Links 26/03/2026: "The War of the Worlds" and "sometimes science is just the dumbest thing"
Links for the day
The World Wide Bots
The shape of the Web is so bad that bots exceed humans in some places
Links 26/03/2026: Solicitors Regulation Authority (SRA) Closes 101 Law Firms in 2 Years, "Please Compensate the Work You Appreciate"
Links for the day
Regaining Software Freedom Means Regaining Control Over Programs That Run on Our Devices
Richard Stallman will speak in Italy
Microsoft Secure Boot Removes Users' Choice
Has Greenland banned Microsoft and 'secure' boot yet?
IBM Pushes Workers Out, It Does Not Count Them as "Layoffs"
The number of IBM layoffs can be as large as tens of thousands per year
Hard to Find a Job After Working for Microsoft (Back Doors Giant, Bribery Hub)
It generally looks like people who chose to serve Microsoft's agenda don't end up too well
Microsoft Lost 31% Of Its Alleged "Value" in Five Months, Then It Got Downgraded
In 2026 Microsoft focuses on keeping the layoffs silent
Altering Perceived Reality to Make It Seem Like Microsoft is Thriving, Not Failing
pretend XBox did not die
SLAPP Censorship - Part 24 Out of 200: The Failed Effort by Brett Wilson LLP to Strike Out My Lawsuit and My Wife's Lawsuit Against Garrett (the Master Allowed Our Lawsuits to Proceed)
This is lawfare
Official New Figures Show That Solicitors Regulation Authority (SRA) Sees Rise in Dishonesty Among Law Firms Forcibly Shut Down ('Euthanised' Due to Misconduct)
It's rather if in our little country as many as 16 law firms were found to be so dishonest that they needed to be shut down
Back to Normalcy
In our datacentre at least
IBM is "Increasing Its Temporary and Part-time Headcount" While Net Headcount Falls (Despite Buying Many Companies and Their Workforce)
Headcount is a rather superficial yardstick.
Confluent Insiders: IBM Laid Off Over 800 at Confluent, Not Just 800
For the record, the layoffs at Confluent won't be over. After the bluewashing there will be "IBM RAs" impacting Confluent folks, aside from PIPs
EPO Union Decides to Continue Industrial Actions, Next Strike in Four Days
The latest strike had the highest participation rate
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, March 25, 2026
IRC logs for Wednesday, March 25, 2026
Microsoft's "Silent Layoffs" in Slop Clothing
"AI-powered transformation" is just a euphemism for mass layoffs
Where and How to Spot LLM Slop
Many people correctly perceive LLMs as a site's downfall, a step towards the abyss
Public Talk by Richard Stallman in Half a Day "at the Engineering and Architecture Campus of Cesena of the University of Bologna"
He'll probably attract a fairly large crowd
Gemini Links 26/03/2026: Buying a House, Stargazing, OFFLFIRSOCH 2026
Links for the day