When harassment gains a new meaning: EPO takes hard line on Hardon

Merpel has recently written here about the constitutional crisis that is about to beset the Administrative Council (AC) of the European Patent Office (EPO), being urged by the EPO President to disregard the constitutional safeguard of Article 23 of the European Patent Convention that protects the independence of the members of the Boards of Appeal (BoA), and which requires a proposal of the Enlarged Board of Appeal in order to remove from office a BoA member.

Ordinary EPO employees who are not members of the Boards of Appeal have no such constitutional safeguard (although it remains to be seen how effective this safeguard will be anyway) and can be disciplined and dismissed at the whim of the President and those who wield power in his name.  The internal disciplinary appeal process is only advisory: an employee can obtain a favourable decision on appeal, only for this to be disregarded by the President.  The employee's only recourse is then to the International Labour Organisation's Appeal Tribunal (ILO-AT), which has such a backlog that cases take years to be heard.

A number of stories have been circulating, alleging institutional harassment of EPO employees by the EPO administration.  These frequently relate to those employees who are active in the EPO union SUEPO (which is not officially recognised by the EPO), and/or are members of the Staff Committees (which are part of the organisational framework of the EPO, but seem to be rarely listened to).  The President promulgated new rules for elections to the Staff Committees, which appeared to have the intention of getting more people elected who were not SUEPO members, but he appears to have not achieved this aim.

Merpel has hitherto been reluctant to identify individuals involved in disputes with the EPO, but now that one of them has been named in other media sources, she need not in this instance concern herself with discretion: the EPO administration is singling out for special treatment Elizabeth Hardon, who is Chair of SUEPO Munich and also Chair of the Local Staff Committee in Munich.  Ms Hardon has already been demoted for alleged "harassment", but Merpel understands that the act complained of was a single sentence written in her official capacity, and that the person purporting to be harassed by this was a senior member of the EPO administration.  This does not correspond to any understanding of harassment that Merpel has encountered before.

Now, in an escalation of action, Ms Hardon was summoned to a disciplinary hearing on 10 September 2015 relating to allegations of harassment, but the nature of these allegations was not specified.  The summons was however published on the Techrights blog and elsewhere.  This apparently being contrary to the requirement to maintain confidentiality in the case of disciplinary investigations, Ms Hardon was then requested by the EPO's Principal Director Human Resources to name all persons to whom the summons had been disclosed, as reported on the FOSS Patents blog.  Ms Hardon's lawyer responded by challenging the legitimacy of requiring the accused employee to keep the fact of the investigation secret, as well as other aspects of the investigation process.  This letter can be seen on the SUEPO website here, at 21/09/2015.  The same lawyer has since written to the Administrative Council and to the President of the EPO, complaining of institutional harassment of Ms Hardon, and the letter has been posted and reported on the FOSS Patents blog.  It remains to be seen whether any of these pleas will have any effect.

The SUEPO website reports (see item of 09/10/15) that further demonstrations will continue at the EPO.  A demonstration in Munich on 14 October 2015 will focus on the issue of institutional harassment of EPO staff.

Merpel discerns that there is more widespread concern about the issues affecting the Boards of Appeal than those relating to the rest of the employees of the EPO, whose position is nevertheless much more vulnerable.  She hopes that these employees will not be forgotten.