Judgment No. 4490
Decision
1. The EPO shall pay the complainant 200,000 euros in material damages less any amount already paid and less any income the complainant received from other employment in the period 1 August 2014 to 1 February 2017.
2. The EPO shall pay the complainant 20,000 euros in moral damages.
3. The EPO shall pay the complainant 1,000 euros in costs.
4. All other claims are dismissed.
Summary
The complainant challenges the amount of damages awarded for the unlawful decision not to renew her fixed-term contract as a Principal Director and to reinstate her in a lower-level post instead.
Judgment keywords
Keywords
complaint allowed; termination of employment
Considerations 10-12
Extract:
The Appeals Committee was correct in approaching the assessment of damages for the unlawful non-renewal decision as ultimately requiring an assessment of what were the prospects that the contract would, at its expiry, be renewed by lawful decision in any event and, viewed from that perspective, assessing the financial consequences to the complainant in losing the opportunity to have the contract renewed (see, for example, Judgments 2867, consideration 18, 4062, consideration 17, and 4170, consideration 15). […]
If a decision is made not to renew a fixed-term contract but the decision was unlawful then an assessment must be made of lost future income with the organisation (adjusted and offset by any future income from other employment) which will involve an assessment of what the prospects were of the contract being renewed and its duration.
However, the position would, at least in a case such as the present, be no different in substance if the complainant’s grievance had initially been and had remained an allegation of constructive dismissal. In a case of unlawful dismissal, if reinstatement is not ordered (in this case not sought), then the material damages are the lost future income in the position with the organisation adjusted by an assessment of whether the staff member would have remained in that position and, if not, also adjusted by future income from other employment (see Judgment 4234, consideration 10). This assessment can also be approached compendiously by assessing the value of the lost opportunity to remain in employment (see, for example, Judgment 4305, consideration 14).
Reference(s)
Jugement(s) TAOIT: 2867, 4062, 4170, 4234, 4305
Keywords
material injury; non-renewal of contract; loss of opportunity; constructive dismissal
Consideration 18
Extract:
The complainant’s claim to moral damages is not dependent on the complainant proving harassment, as the Appeals Committee believed. It is tolerably clear from the terms of the complainant’s letter of resignation of 29 April 2014 and the contemporaneous medical certificate from her treating physician (the contents of neither, as they related to the effect of events on the complainant, were challenged by the EPO) that the decision to abolish her post and not to renew her Principal Director contract had a serious and negative effect on the complainant’s health and well-being culminating in her resignation.
Keywords
moral injury; non-renewal of contract; resignation
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