Judgment No. 4663
Decision
1. The decision of the Secretary General of Interpol of 31 July 2019 and the prior decisions of 13 October 2017 and 1 December 2017 are set aside.
2. Interpol shall pay the complainant moral damages in the amount of 25,000 euros.
3. The Organization shall also pay her costs in the amount of 8,000 euros.
4. All other claims are dismissed.
Summary
The complainant challenges the refusal to acknowledge the harassment that she alleges she suffered and to provide her with the full inquiry report drawn up following her internal complaint against a colleague.
Judgment keywords
Keywords
complaint allowed; harassment
Considerations 6-7
Extract:
As regards [...] the failure to disclose to the complainant the entire preliminary inquiry report, which was central to the case, before the Joint Appeals Committee delivered its opinion and the Secretary General adopted the impugned decision, it is well settled that a staff member must, as a general rule, have access to all the evidence on which an authority bases or intends to base a decision that adversely affects her or him (see Judgment 4622, consideration 12). Under normal circumstances, such evidence cannot be withheld on grounds of confidentiality (see Judgment 4587, consideration 12).
Furthermore, the Tribunal has consistently stated that a staff member must be provided with all the materials an adjudicating body uses in an internal appeal and that the failure to do so constitutes a breach of due process (see Judgments 4412, consideration 14, 3413, consideration 11, and 3347, considerations 19, 20 and 21). In Judgment 4541, consideration 3, the Tribunal accordingly confirmed that a refusal to disclose an investigation report to a staff member in good time – even in a situation where, contrary to what happened in the present case, the report would have been provided at the same time as the organisation’s final decision – has the consequence of denying the staff member the opportunity to meaningfully challenge the findings of the investigation concerned in internal appeal proceedings conducted within the organisation.
In Judgment 4217, consideration 4, the Tribunal emphasised the importance of disclosing an investigation report similar to the one which the complainant had requested in the present case and noted that the fact that the complainant was ultimately able to obtain a copy of the report during the proceedings before the Tribunal did not remedy the flaw tainting the internal appeal process [...].
Lastly, in Judgment 4471, consideration 23, the Tribunal stated that the disclosure of extracts of a preliminary investigation report is generally not sufficient and an organisation is required to disclose the entire report, even if this means redacting it to the extent necessary to maintain the confidentiality of some aspects of the investigation, linked in particular to protecting the interests of third parties.
In the present case, the Tribunal considers that, having regard in particular to the content of the witness statements taken during the preliminary inquiry, from which it is plain that their disclosure was not liable to adversely affect the interests of third parties, there was nothing to prevent the complainant from being provided in good time with the full report of that inquiry and the transcripts of interviews that were appended to it. Such disclosure was essential if the complainant’s rights were to be observed, since the Secretary General and the Joint Appeals Committee relied on those documents and the complainant should therefore have been given the opportunity to comment on them.
The complainant requested a copy of the preliminary inquiry report of 10 October 2017 on no fewer than four occasions. The Joint Appeals Committee was aware of these requests, as was the Secretary General. During the internal appeal proceedings, however, the Organization merely quoted short excerpts from the report in its submissions, without providing the complainant with the full report. This response was incomplete and insufficient. Furthermore, although the Committee itself requested the full report and considered the report during its examination of the case, it did not inform the complainant of the full content of the report at any point. Staff Rules 10.3.2(5) and 10.3.4(3) provide that the official must have access to the documents and forms of evidence submitted to a joint committee and the official must have the opportunity to express her- or himself on the evidence used as a basis for a consultative opinion. Moreover, although Staff Rule 10.3.5(1,b) provides that a joint committee’s opinion must include a copy of the relevant documents submitted to it, the inquiry report was not appended to the opinion of the Joint Appeals Committee.
In the impugned decision the Secretary General endorsed the Committee’s recommendations, which referred to the inquiry report, but failed to send it to the complainant yet again. The Tribunal recalls that, in that decision, the Secretary General confirmed his earlier decision of 1 December 2017, which had rejected the complainant’s request for review by referring to what must be understood as the transcripts of the witness interviews conducted by the investigators, without their having been sent to the complainant at any time.
The Tribunal is not persuaded by the Organization’s attempt to justify the decision not to provide a copy of the report or the transcripts on the basis of the requirement that they be kept confidential. It notes that the Organization eventually provided the complete inquiry report and its annexes without redacting them at all, which shows that the Organization itself ultimately admitted that there was nothing preventing their disclosure.
It follows from the above that the complainant’s plea in this respect is well founded. These irregularities in the internal procedure constitute a substantial defect rendering both the impugned decision and the prior decision of 1 December 2017 unlawful.
Reference(s)
ILOAT Judgment(s): 3347, 3413, 4217, 4412, 4471, 4541, 4587, 4622
Keywords
disclosure of evidence; harassment; investigation report; confidentiality
Considerations 10-13
Extract:
The Tribunal observes that the position taken by the Organization in the preliminary inquiry report, the decision of 13 October 2017 and the responses given to the complainant’s request for review, namely that there was insufficient evidence of the conduct alleged by the complainant because any reasonable doubt had to weigh in Mr S.’s favour when it came to the decision whether to take disciplinary action against him, was incorrect. In Judgment 4289, consideration 10, the Tribunal stated as follows on precisely this point:
“[...] A staff member alleging harassment, and a fortiori in an investigation on a preliminary basis of the type being undertaken, does not need to establish, nor does the person or body evaluating the claim, that the facts establish beyond reasonable doubt that harassment occurred. While an allegation of harassment may found disciplinary proceedings in which the standard of ‘beyond reasonable doubt’ would apply, it has no application in the assessment of the claim of harassment where the staff member is seeking workplace protection or damages or both.”
(See, to the same effect, aforementioned Judgment 4207, consideration 20.)
In the present case, given that it was aware that the complainant objected to the impact of the harassment and that her harassment complaint was not confined to seeking the adoption of disciplinary measures against Mr S., the Organization should not have considered only the question of whether reasonable doubt existed but should instead have carried out a rigorous and thorough inquiry so as to resolve any credibility issues that it had identified in respect of what it saw as the contradictory accounts given by the complainant and Mr S. in their testimonies. In this respect, the Tribunal notes that the Organization appears to have attached little importance to the email exchanges that immediately followed the incident on 8 July 2017, the content of which strengthened the credibility of the complainant’s testimony while diminishing that of Mr S.’s subsequent account, or to the explanations provided by Mr S., called into question by the investigators themselves, as to the sexualised language he had used.
Nor could the Organization ignore the complainant’s perception of herself as a victim of harassment and her assertion that she had felt demeaned, degraded and humiliated by the behaviour to which she had been subjected. As the Tribunal similarly noted in Judgment 4541, consideration 8, the main factor in the recognition of harassment is the perception that the person concerned may reasonably and objectively have of acts or remarks liable to demean or humiliate her or him. In this respect, the Organization should have ascertained why the harassment complaint submitted by the complainant could not be deemed credible, especially as the complainant’s good faith was never called into doubt.
Reference(s)
ILOAT Judgment(s): 3312, 4207, 4471, 4541, 4547
Keywords
organisation's duties; harassment
Considerations 17-18
Extract:
[T]he complainant does not request in her submissions that her complaint of harassment be remitted to the Organization for a thorough inquiry. She confines herself to claiming redress for moral injury and seeking an award of damages. In view of this, the Tribunal considers it inappropriate to refer the case back to the Organization. Rather, the appropriate course in this case is to award the complainant adequate compensation for the moral injury caused by the decisions that the Tribunal will set aside. The Tribunal considers that there is sufficient evidence and information in the file to enable it to reach a decision on the extent of this injury.
As can be seen from the foregoing, the complainant was deprived of her right to have a rigorous and thorough inquiry conducted into her complaint of harassment, which would, in all likelihood, have established that she had submitted a credible complaint of harassment in good faith. In addition, the complainant was deprived of her right to know whether the harassment against her had been acknowledged and of her right to receive the report of the preliminary inquiry into the complaint in good time.
Keywords
moral injury; case sent back to organisation; compensation; harassment
Consideration 19
Extract:
It is settled case law that staff members are entitled to have their internal appeals examined with the necessary speed, having regard in particular to the nature of the decision that they wish to challenge (see, for example, Judgments 4457, consideration 29, 4037, consideration 15, or 3160, consideration 16). Moreover, the Tribunal has repeatedly pointed out that the duty of care requires organisations to deal with harassment cases as quickly and efficiently as possible (see, for example, Judgment 4243, consideration 24).
Reference(s)
ILOAT Judgment(s): 3160, 4037, 4243, 4457
Keywords
time limit; harassment; delay in internal procedure
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