Breaking news - Teleworking outside the country of employment: the President of the General Court confirms R&D’s legal analyses
Brussels, 27 April
2021
Breaking
news
The President of the General Court confirms R&D’s legal analyses ofthe unacceptable nature of the restrictions imposed onteleworking outside the country of employmentduring the health crisis ( lien )
By
his Order of 13 April 2021, the President of the General Court upheld an
application for interim measures submitted by a colleague assigned to the
European Institute of Innovation and Technology (EIT) against the decision to
refuse her the opportunity to telework outside the country of employment
during the health crisis
This
Order is particularly interesting as the EIT applies much more flexible rules
than those applied at the Commission, as the EIT allowed teleworking outside
the country of employment during the health crisis up to two weeks per month.
And
yet, it is to these rules, which are much more flexible than those applied by
our institution, that the Order imposes the suspension.
Our
colleague who lodged the application for interim measures complained, inter
alia, that the restrictions imposed on teleworking outside the country of
employment prevent her from seeing her two minor children regularly for an
indefinite period.
Indeed,
due to the COVID-19 pandemic, as for many other members of our staff, the
possibilities for this colleague to travel regularly to see her family were
compromised due to travel restrictions, possible limitations on the number of
flights operated and higher flight cancellation rates.
Furthermore,
the existing quarantine measures also threatened to reduce the time she could
have spent with her family and children, while the prolonged social distancing
and distance learning accentuated the role and importance of monitoring and
support that parents must provide to their children.
In
this regard, it should be borne in mind that the possibility of being close to
their children is one of many of the reasons put forward by the Commission
staff and of which we have informed our administration, for requesting the
relaxation of the rules on teleworking outside the country of employment during
the health crisis.
And
we have repeatedly pointed out that the interests of the service must be
balanced against the interests and personal situations of colleagues, in line
with the duty of care.
As
the Order points out, the present case was concerned with balancing, on the one
hand, the interest in preventing serious and irreparable harm to colleagues
because of the impossibility of maintaining regular contact with their minor
children while carrying out their professional duties in the challenging
context caused by the COVID-19 pandemic, and, on the other hand, the
institution’s interest on the colleague working at her place of employment.
Interest in working at the place of employment, which is all the less crucial
given the current 100 % teleworking scenario adopted by our institution.
And
this obligation of balance is, of course, the same where the request is
motivated by the need to be with his or her spouse, his or her elderly or
suffering parents, or by other significant difficulties with respect to family
life. In order to assess the seriousness of these difficulties, it is
sufficient to refer to the testimony given by the colleagues of the
"TWA" group, sent to Commissioner Hahn on 12 April.
And
contrary to what DG HR claims regarding the indisputable clarity of the scope
and effectiveness of Article 20 of the Staff Regulations, the President of the
General Court confirms that:
“(...) so far, the
Union courts have not yet made an interpretation of Article 20 of the Staff
Regulations and of the possible adjustments to the obligation arising from that
provision in the context of exceptional circumstances such as those arising
from the COVID-19 pandemic. Moreover, the existing case-law does not allow for
an easy answer to that question, which requires, on the contrary, a thorough
examination in the main proceedings... it follows from the foregoing that the
main action raises an important and delicate novel question which warrants an
in-depth examination, which cannot be carried out by the judge hearing the
application for interim measures in the context of an examination of the
merits, prima facie, of the main action, but must be the subject of the main
proceedings.”
This
is what we have consistently said and we are far away from the legal certainty
that DG HR has constantly claimed, feeling entitled to accuse other
institutions who had adopted a more flexible approach to teleworking outside
the country of employment during the health crisis, of failing to comply with
the Staff Regulations.
DG
HR’s position is all the less understandable, as it proposes a much more
flexible approach to teleworking outside of the country of employment in the
context of the “New Normal” than during the health crisis, which is simply an
insult to the colleagues who were denied their requests.
And
the President of the General Court recalls, as we have consistently pointed
out, the obligation for the institution to comply with the DUTY OF CARE
and that:
“it should be noted
that, although the institutions have a wide discretion in the organisation of
their services and the organisation of the working conditions of staff in
accordance with the constraints associated with the health situation, the
exercise of that discretion must nevertheless be carried out in compliance with
the duty of care. This reflects the balance of reciprocal rights and
obligations that the Staff Regulations and, by analogy, the Conditions of
Employment of Other Servants of the European Union have created in relations
between the public authority and civil servants. That balance means, in
particular, that, when deciding on the situation of a member of staff, the
authority must take into consideration all the factors which may determine its
decision and that, in so doing, it must take into account not only the
interests of the service but also, in particular, that of the staff member
concerned... This is all the more true in the context of the current COVID-19
pandemic, which calls for the adoption of more important measures of care and support
to respond to personal situations which make the performance of the duties
particularly difficult’
It
is in this context that the President of the General Court confirms that, as we
have always stated, weighing up the interests tends in favour of our colleague,
who should be allowed to telework from her children’s place of residence,
provided that the situation related to the COVID-19 pandemic so warrants and
without prejudice to the obligation to travel on an ad hoc basis to the place
of employment for reasons related to the interests of the service, at the
request of her institution.
In view of the above, we reiterate our request that the Commission, as
well as to the other institutions, relax the current rules on teleworking
outside the country of employment during the health crisis.
It is not a question, as DG HR claims, of calling into question and/or
jeopardising the basic principles of our European civil service, which R&D has always defended with the utmost
determination. It is not natural to imagine that the President of the General
Court of the European Union could also be accused of it.
It is simply a question of taking into account the sometimes dramatic
seriousness of the difficulties that colleagues may encounter because of the
terrible COVID 19 pandemic.
Throughout this terrible pandemic, staff have continued to show
exemplary dedication, enabling our institution to continue to carry out its
mission.
It is now a matter of simply demonstrating that our institution is able
to recognise these efforts by showing the attention and trust that our staff
more than sufficiently deserves.
Cristiano
SEBASTIANI,
President
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