Summary: "The fact that top management does not seem to care to be seen publishing such an unlawful "guidance" tells volume about the interest for (and the respect of) the rule of law in management circles," SUEPO notes

The Staff Union of the European Patent Office (EPO), often known as "SUEPO" for short, has just released a new document. Bearing in mind that António Campinos has not actually tackled any of the issues and is in fact promoting European software patents more than Battistelli did (even if European courts reject these), the following is noteworthy and an insider (Märpel) blogged it in full, noting it was circulated in private the day eDossier died (context in [1, 2]):

"Rat race 3.0" Part I: Staff Reporting in the New Career System (NCS) – Total mayhem Dear SUEPO Members, dear Colleagues,

Background

In September 2018 Mr Campinos dismissed an examiner colleague for alleged professional incompetence. He did so even though the CSC had drawn his attention to the unlawfulness of any procedure based on Art. 52 ServRegs (dealing with professional incompetence) until and unless implementing rules to Art. 52 are defined. The CSC could not support the implementing rules proposed by management in the GCC-meeting of 18 December because they were lacking clarity and sufficient safeguards for staff.

With no implementing rules to Art. 52 in place, management now follows an alleged "existing practice", implying that EPO employees can be brought before the "Joint Committee on Art. 52 & 53" after three consecutive years with a very poor assessment of their overall performance (at level "8" in the appraisal report). This opens the perspective to subsequent dismissal by the President. We are convinced that any decision to dismiss a colleague under such undefined "practice" would be illegal, as it cannot replace the missing implementing rules. Unfortunately, such consideration will not deter management from firing anyone, as already demonstrated by Mr Campinos' September decision.

Fear policy

Some colleagues have already been informed by their Reporting Officer (RO) that their overall 2018 performance is likely to be rated at "far below the expected level". In the managers' interpretation this puts or keeps the staff member on the track leading to possible dismissal for incompetence. Clearly procedures for dismissing staff for incompetence are not meant to be used only in truly exceptional cases. Threatening with professional incompetence procedures is becoming an HR tool for implementation of EPO policy. The intention seems to be to get everyone working harder or quicker for fear of dismissal. Such management methods are toxic and dangerous. They have already been tested elsewhere, e.g. in France Telecom 10 years ago, with a disastrous effect on staff's health and a wave of work related suicides.

Removing the overall box marking...

Together with the New Career System (NCS) management introduced new rules for staff reporting, i.e. Circular No. 366 (C366) "General Guidelines on Performance Management". The first version of C366 entered in force on 1 January 2015 and was applied for three years until the end of 2017. At that time C366 was totally revamped and replaced as from 1 January 2018 by the present "Guidelines on performance management". They were in force in 2018 and remain in force in 2019.

For the first time in the EPO's reporting-history the current C366 was introduced without a template for the appraisal report . Only when accessing the online tool SuccessFactors after the 2018 reporting exercise was closed did staff discover the exact structure and layout of their 2018 appraisal report. This clearly puts the EPO at the forefront of chaotic HR practices in international organisations...

But there is more. Current C366 does not foresee any box marking for the overall assessment of EPO staff. As a matter of fact current C366 was drafted with the clear intention to remove any box marking for the overall assessment, as stated in the introduction paper accompanying new C366 when it was put on the agenda of the GCC in November 2017: "new performance management approach articulates around 3 main pillars", one of them being "the absence of an overall box marking to put the emphasis on qualitative feedback"; "the overall performance is assessed in a qualitative manner and the 8 point scale box marking is removed".

Why did the Battistelli administration introduce this change in C366? From 2015 to 2017 the Office had already been successful in de facto uncoupling staff reporting from career progression (step increase/promotion). By amending C366 management further emptied the appraisal report of its substance. We suspect that the "cunning plan" was to definitely discourage staff from challenging appraisal reports. Why investing time in challenging an appraisal report which has become useless for career progression?

However, during discussions at the end of 2018 between HR and the Staff Representation about professional incompetence, it appeared that HR had realised that an overall box marking could be useful after all, however not for rewarding staff. Their concern was the situation of colleagues already in the "incompetence pipeline", e.g. with two consecutive appraisal reports over 2016 and 2017 with an overall assessment marked "8". Would the absence of an overall box marking in 2018 let them off the hook? Management did not seem to be at all happy about that.

For an amended version of C366 to enter in force on 1 January 2019 it was put on the agenda of the GCC meeting of 18 December 2018. This proposed C366 was reintroducing an overall box marking with only 4 levels to be applied with retroactive effect to the 2018 appraisal reports. The President finally withdrew this amended C366, as already reported by the CSC (see sc19002cp), which therefore never entered in force. It follows that, in accordance with current C366, there cannot be an overall box marking in appraisal reports over 2018, whether on an 8 or a 4-points scale. The overall assessment over 2018 must remain strictly qualitative.

But this is not the end of the story. After having failed to re-introduce lawfully the overall box marking for 2018 (on a 4-points scale instead of 8), management is now implementing it through the back door. The most visible example of this move is the new DG1 "Guidance to performance assessment 2018" circulated by VP1 Office to all DG1 managers on 15 February 2019 and officially published on the Intranet and signed by Mr Rowan, VP1, a few days later.

Surprise, surprise - this "Guidance to performance assessment 2018" asks DG1 managers to conclude their overall assessment of staff's performance by using one of the following expressions:

• above the expected level 
at the expected level 
below the expected level 
far below the expected level



• This is a 4-points scale of the overall assessment in all but name . It has no legal value since the retroactive DG1 guidance contravenes C366 in force for 2018, both in letter and spirit . The fact that top management does not seem to care to be seen publishing such an unlawful "guidance" tells volume about the interest for (and the respect of) the rule of law in management circles. This reminds us strongly of the Battistelli times.

The introduction of a 4-points scale overall box marking is not only illegal, it increases the risk of being assessed at "below" or even "far below", since finer assessment over an 8-points scale (as in 2016 and 2017) is no longer possible. In view of the possible very negative consequences of an overall "(far) below" assessment, we advise to challenge your 2018 appraisal report if it contains either the expression "below the expected level" or "far below the expected level". Not doing so would mean that you de facto acknowledge that your 2018 performance was indeed below the expected level . This would weaken your legal position should a procedure for professional incompetence be started later on. In any event we strongly recommend challenging any 2018 appraisal report mentioning "far below the expected level".

In the current EPO environment, we can only recommend that you protect yourself against any (ab)use of the reporting system.

Your SUEPO Committee The Hague

Considering this recent SUEPO publication, it does not look like anyone will be held accountable for massive losses. The rule of law continues to be absent at the Office. ⬆