Abstract

Findings of the Complaints Board
On the admissibility,
(...)
The Complaints Board considers that a former member of seconded staff has a manifest interest in contesting the validity of a disciplinary decision removing them from their post even if reinstatement is not a viable remedy in their case and they have not sought financial compensation for the damage suffered.
This interest flows from the very nature of this disciplinary penalty and from the serious, lifelong and irrevocable consequences that the fact of having been removed from one’s post can have on one’s professional reputation and employment prospects in the future.

On the substance,
First ground for annulment: the School acted illegally in pursuing the disciplinary procedure against the applicant while she was absent on sick leave
19. The applicant argues, first, that the School acted illegally in even initiating disciplinary proceedings against her whilst she was absent on sick leave and that general principles of law common to various national employment laws prohibit this. The Complaints Board finds no evidence for the existence of a general principle of law prohibiting the launching of disciplinary proceedings against employees whilst they are on sick leave. Circumstances sometimes warrant the opening of disciplinary proceedings against members of staff who are on sick leave, and, in these cases, employers must balance their duty of care towards the member of staff concerned with their responsibility of ensuring the timely completion of disciplinary matters.
In the present case, the School did not act unreasonably in deciding to open disciplinary proceedings against the applicant in the light of the information it had concerning her state of health, on the one hand, and the seriousness of the misconduct alleged against her, on the other.

20. The applicant also argues that the School acted in breach of her right to be heard by proceeding with the disciplinary procedure while she was on sick leave and unable to attend a hearing.
Pursuant to Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (hereafter “the Charter”), everyone has the right to be heard before any individual measure which would adversely affect him or her is taken.
Where disciplinary proceedings are taken against teachers seconded to the European Schools, the right to be heard is implemented by Article 75(6) of the Staff Regulations which provides that “the member of staff charged shall be given a prior opportunity to state his views and shall have access to all relevant papers in the file” and that “he shall have not less than fifteen days from the date of initiation of the proceedings to prepare his defence and may be assisted by a defence counsel of his choice”.
The Complaints Board considers that whilst the right to be heard ideally includes the right to participate at an oral hearing, in those cases where the member of staff is unable to attend a hearing in person, including on medical grounds, the essential requirements of Article 41(2)(a) of the Charter and Article 75(6) of the Staff Regulations can be met where he or she is offered the opportunity of submitting written observations and being represented at the hearing by a lawyer.
The Complaints Board recalls, also, that in the comparable context of disciplinary proceedings taken against officials of European Union institutions, the Court of Justice and the General Court have ruled, in an established line of case-law, that the failure to hear the person concerned does not entail the annulment of the decision imposing a disciplinary penalty if this failure is attributable to him or her and that the institution is not obliged to postpone indefinitely the date of the final hearing until the official concerned is able to attend ; on the contrary, in the interests of both the official and the institution, the decision ending the disciplinary procedure cannot be delayed without justification (see points 36 and 37 of the Order of the Court of Justice of the European Union of the 29th of September 2022 in case C-71/22 P, CX / Commission, and the case-law cited therein).
However, the Complaints Board considers that disciplinary proceedings should be suspended in those cases where, for reasons of medical incapacity, the member of staff concerned is unable to understand the nature of the case against them or to exercise their right to be heard.
In such cases, in accordance with the principles governing the burden of proof, it is for the member of staff concerned to demonstrate the existence of the medical incapacity which he or she is invoking. The production of a medical certificate merely justifying sick leave does not suffice to this end. The member of staff must produce a medical report proving specifically that he or she is affected by a physical or mental incapacity preventing them from understanding the scope of the communications sent by their employer relating to the disciplinary proceedings or from effectively exercising their right to be heard, including, if necessary by mandating a lawyer to act on their behalf (see, in the comparable context of disciplinary proceedings taken against officials of European Union institutions, judgement of the Court of First Instance of the 5th of December 2002, T-277/01, Stevens/Commission, points 55-56).
In this case, the applicant produced medical certificates justifying her sick leave but no specific evidence proving her medical incapacity to exercise her right to be heard. Also, throughout her period of sick leave, she participated actively in administrative and legal proceedings concerning her and communicated with the School in a manner such that the School was entitled to assume that she could indeed exercise her right to be heard.
In these circumstances, in postponing the hearing twice over a period of three months and by informing the applicant of the various alternative options open to her to ensure her right to be heard if she couldn’t attend in person – such as submitting observations in writing, being represented at the hearing by a lawyer or participating by video link – the School struck a fair balance between its obligation to conclude the disciplinary proceedings promptly and its responsibility to safeguard the applicant’s right to be heard under Article 41(2)(a) of the Charter and Article 75(6) of the Staff Regulations.

21. The first ground for annulment must therefore be rejected as unfounded.

Second ground for annulment: the finding of serious misconduct is not supported by the evidence
22. The Complaints Board must determine whether the facts alleged against the teacher during the disciplinary proceedings are proven and constitute misconduct justifying the imposition of the disciplinary measure, bearing in mind that the applicant enjoys a presumption of innocence, by virtue of Article 48(1) of the Charter, and that the burden of proof consequently lies with the School.

25. In these circumstances, the Complaints Board considers that the applicant has not established that the Secretary General erred in deciding that the evidence supported a finding of very serious misconduct justifying the disciplinary penalty of removal from post.

26. The second ground for annulment must therefore also be rejected as unfounded.
As the applicant’s pleas in law have both failed, her application for annulment of the Secretary General’s decision of the 10th of June 2024 removing her from her post for very serious misconduct must be dismissed as unfounded.