SCHWAB | FLAHERTY | ASSOCIES ‘Attention : Nouvelle adresse 7, rue de Candolle CH-1205 Gentve Alexandre J. Schwab RECOMMANDEE & PAR ‘Avocat ~ MBA COURRIEL Edward Patrick Flaherty Mr Jesper Kongstad Attorney at law ~ Member of the US Supreme Court Director General and Massachusetts Bar Danish Patent and Trademark Office Membre de Ordre des Avocats de Geneve Helgeshoj Allé 81 2630 TAASTRUP Michael Ford Shanahan DANEMARK Attorney at law ~ MBA e-mail: ko@dkpto.dk Member of the US Court of Appeals for the Armed Forces and Colorado Bar Mr B. Battistelli President of the EPO neler ceyan Bob-van-Benthem-Platz | Attorney-at-Law Economist/stock & FX Expert D-80469 Munich Member of the Istanbul Bar Association ‘e-mail: President@epo.org Monika Ona Bileris ‘Mr Derk-Jan De Groot Attorney-at-Law Director--Netherlands Patent Office Member of the New York Bar (USA) P.O. Box 10366 2501 HJ DEN HAAG PAYS-BAS e-mail: Geneva, 8 October 2015 Concerne: Ms Elizabeth Hi uropean Patent Office il Dear Sirs: Attached please find a demand transmitted on behalf of our client, current EPO staff member, Ms. Elizabeth Hardon. Thank you for your courtesy and attention, Respeettilly, LS AUG UO Edward Patrick Flaherty Counsel to Ms. Hardon Enclosure Etude d'avocats | Law Firm Genéve | Istanbul | Singapore’? Switzeriand | Genéve | CH-1205 | 7, rue de Candolle vwow.sfelegal.com | info@sfaiegal.com /Mahesty@sfalegal.com T: #41 22 840 5000 | F +41 22 840 505508 October 2015 Munich, Germany To Mr Jesper Kongstad Chairman ‘Administrative Council of the EPO Subject: Continuing Institutional Harassment of an EPO Staff Representative Dear Sir, I am an elected staff representative of the EPO (Chair, Munich Local Staff Committee) as well as that of SUEPO (Vice-Chair, Central). On 04 September 2015 I was notified of allegations of misconduct against me by the Head of the EPO Investigative Unit (see ANNEX 1). This letter stated that there were allegations that I “orchestrated and promoted” a harassment campaign against a named staff representative in The Hague, and later used this to intimidate other staff representatives in Munich. The letter did not state (a) the name of the complainant(s), (b) the source of the statements contained in this letter, or (c) any other basis, factual, evidentiary or otherwise, for the pursuit of an investigation against me. Let me state at the outset that J categorically deny any and all allegations of misconduct against me, and call on the Office to prove the charges against me beyond a reasonable doubt as required by applicable ILOAT jurisprudence I would like to first draw attention to the fact that this letter refers to “meetings of the Local Staff Committee in Munich”. These meetings are confidential and any discussions therein are not to be disclosed to (nor are they within the remit of) the Administration. This is an egregious breach ~ not just of confidentiality ~ but of the exercise of the right to freedom of association of all EPO staff member free from any intervention by the Administration. Second, any statements made in such meetings by the participants, in their capacity of staff representatives, are part of an opinion forming process among staff representatives and are to be taken in such context. They are not statements of fact that could form the basis of a charge of slander or defamation. The Administration's attempt to interpret an oral statement made in such a meeting and in such capacity amounts to censoring in violation of my right to freedom of speech and expression as an EPO staff member and a duly elected staff representative, and in violation of the right of all EPO staff members to freedom of association as noted above. Third, it is hard to believe that a single sentence ~ and indeed misquoted — expressed in a confidential discussion that took place in a meeting of the local staff committee can give rise to “harassment”. Any normal, standard definition of harassment implies repetitiveness, Under Circular 341, a single incident can only constitute harassment if it is so severe that it has a negative impact on the overallworking environment. There has been no such impact on the overall work environment at the EPO because of the statement allegedly made by me. On the contrary, it is intimidating tactics such as these - casting false aspersions on elected staff representatives, causing them professional as well as personal injury, subjecting them to an interrogation by a purported “union-bashing” external firm — have created an environment of fear and loathing at the EPO. It must furthermore not be forgotten that where there is a reasonable explanation for some conduct in question (although it is denied that any such conduct occurred in my case), the impugned behaviour cannot be characterised as harassment (Judgment No. 2524 of the AT-ILO). As indicated above, the alleged offending communication occurred in a confidential discussion between elected staff representatives exercising their fundamental rights to freedom of speech, expression and association, and moreover, it was clearly not an actionable assertion of fact, but rather a mere opinion which cannot form the basis of a charge of slander or defamation. Fourth, the conduct of an interview by the Investigative Unit implies a conclusion that the charges against me, if proven, would amount to misconduct (Circular 342, Art. 11(1)). As set out above, the very limited “facts” available to the Investigative Unit even now do not support a finding of misconduct. Consequently, it should have been evident that the charges against me (if there were any, in the first place) were not likely well-founded or justified in any manner. | am therefore forced to conclude that the Investigative Unit did not fulfill its prima facie duty to ascertain that the allegations, if proven, would amount to misconduct. These foregoing points raise a serious question about the real motives behind the investigation initiated against me. The suspicion that the investigation is driven by ulterior motives is further supported by the treatment meted out towards me by the ‘Administration in the past, Almost two years ago, the Administration brought similarly specious harassment charges against me again made in my capacity as a duly elected staff representative, based on a single sentence, expressing a collective opinion, written in a confidential e-mail, using an @suepo.org e-mail address. The relevant mail was sent to 16 recipients who were either elected staff representatives or experts retained by the staff representation. The purpose of the e-mail was to inform the recipients that a letter had been sent to the President of the EPO requesting an investigation into a recent suicide of an EPO colleague. Nonetheless, the Investigative Unit incredulously found the allegations of harassment against me were “founded and proven”, and that my conduct had been incompatible with several articles of the EPO Service Regulations (note that in making such statements the Investigative Unit went well beyond mere “administrative fact-finding”). The responsible Disciplinary Committee unanimously rejected the charges against me. It recommended that the President close the proceedings and reimburse my legal costs. Notwithstanding this reasoned opinion, the President ignored the findings of the Disciplinary Committee and imposed upon me the disciplinary sanction of down-grading, corresponding to about 1/3" of my 25 years ofrecognized professional experience. A complaint has been lodged at AT-ILO. However, the final judgment may take another 3-4 years to be issued. It must be further noted that in this previous case, the Disciplinary Committee specifically stated that it was in the very nature of contacts between Staff Committee members that a certain degree of confidentiality is to be preserved. Not only was this recommendation ignored in the past case, it has been perpetuated to become a practice of the Administration, as demonstrated in the present case against me. Should any doubt have arisen as to these alleged comments (which are ‘thoroughly denied) or the context of the said meetings, the matter ought to have been addressed with the Local Staff Committee and not with me personally. It should also be remembered that this specific point has already been ruled upon and disposed of by the AT-ILO in Judgment No. 2984 (also involving false charges of harassment levied against me for “campaigning against” a staff member, which the Tribunal rejected firmly). The repeated disciplinary proceedings against me based on frivolous charges, all of which have been dismissed as being unlawful by the Disciplinary Committee and the AT-ILO, show the Administration's ill will against me, in particular, and bad faith against the EPO staff representatives, in general. I have been the target of numerous hostile, highly intimidating attacks by the Administration under this President. These personal attacks have set back my career leading to financial as well as professional injury, damaged my dignity, caused me significant stress and seriously affected my health. These attacks have also denied me the protection normally accorded to a staff representative, As of the date of sending this letter, I have not been informed who the complainant is, According to AT-ILO Judgment No. 2014 "It is contrary 10 due process to require an accused staff member to answer unsubstantiated allegations made by unknown persons.” | have reasons to believe that neither the person mentioned in the letter informing me of the allegations, nor my colleagues in the Munich Staff Committee who have been interviewed as witnesses, made any complaints against me. The most likely initiator of the investigative process is Mr Battistelli, President of the EPO. The Presideny repeatedly expressed his suspicion that harassment within the staff representation (rather than the obvious reason, viz., threats from the Administration) caused the resignation of a number of staff representatives and in fact announced investigations well before any such investigations were initiated. He also vehemently defended the investigative process in the so-called “trilateral” meeting on Union recognition on 28 May 2015. Having regard to their source these attacks, taken together, amount to institutional harassment and constructive dismissal. As the Tribunal held in Judgment No, 2984, these are affronts to my dignity, and such attacks, when considered together, constitute harassment. In fact, these repeated attacks fall within thedefinition of "harassment" under Circular 341. Such baseless investigations and disciplinary measures meted out notwithstanding well-founded, exonerating conclusions by a Disciplinary Committee in my favor amount to unwelcome conduct which has the purpose and effect of humiliating as well as degrading me, thereby creating an intimidating work environment — especially for staff representatives — and unreasonably interferes with my ability to perform my assigned duties as a duly elected staff representative. ‘There can be no claim of managerial necessity either. As the Tribunal held in Judgment No. 2654, continued mismanagement on the part of an Organization cannot be excused by administrative necessity, especially when taken as a whole the effect is damaging to a staff member's career and dignity. In view of the foregoing, I hereby respectfully request that you forthwith initiate a misconduct investigation into the institutional harassment against me and other EPO staff representatives as detailed above, and that the Office be instructed immediately to cease and desist from such illegal and irregular misconduct until such time as the demanded investigation has been undertaken and completed, and a report made to the fall Administrative Council. In view of the fact that it is likely that the President of the Office is implicated in the alleged misconduct, I request that such investigation be conducted by an independent and external authority with no real or apparent conflict of interest with the Office. I further request that I be provided with the unabridged report of such investigation at the same time as the Administrative Council, and that such report be circulated among all member states and EPO staff. ‘The foregoing is sent to you without prejudice, under reservation of all rights that I ‘may have to redress such misconduct. ‘Thank you for your prompt attention to the foregoing; I look forward to the courtesy of your reply. Please treat the foregoing as a request for a final administrative decision. yaw Yours, Elizabeth Hardon Enclosures : ANNEX | ce Battistelli Mr. D.-J, De Groot (Dutch delegation) UN Special Rapporteur for Freedom of Speech and Expression UN Special Rapporteur for Freedom of Association UN Special Rapporteur for Human Rights Defenders SUEPO Centrala PD 0.6 INTERNAL AUDIT AND OVERSIGHT 0.6.1 INTERNAL AUDITING AND INVESTIGATIONS. 0.6.1.4 INVESTIGATIVE UNIT ‘eae muna pe oss ‘rral Ang ard rvestgatons Ms Easbo Hardon =... Pachortfe A1037 Manchen ‘Case number C-074: Notification of allegations of misconduct Dear Ms Hardon, {am writing to inform you, in accordance with Art. 15 of Circ. No. 342, that the Investigative Unit (D 0.6.1.1) at the European Patent Office (EPO) is currently reviewing the following allegations of misconduct against you: ‘a) that in autumn 2014 you orchestrated and promoted, or assisted in a harassment campaign directed against Jan elected member of the Central Staff ) that in December 2014 you threatened other staff members in meetings of the Local Staff Committee in Munich, purposefully using. the intimidatory effect created by the campaign against to intimidate and pressure those other colleagues. The allegations thus imply that you may have breached your obligations as a permanent employee under Art. 14 (1) ServRegs. Please note the following: 1. This review is being conducted in accordance with Circulars No. 341 and No. 342, affording ail rights of due process. The investigative process is ‘conducted in an impartial, thorough, and timely manner, in accordance with all applicable EPO provisions and the principle of proportionality. ‘The rights of all parties are fully respected. In accordance with Art. 6 of Circ. No. 342, you are, throughout the course of the investigative process, presumed innocent until all facts and circumstances have been obtained and @ decision on the matter has been taken by the relevant appointing authority. fateonce C71 Date o4c0 20155 2 Nour coopseaton ni heeaaaton ee,» athens iol ates . We would hereby like to invite you to attend an Witt the Inveetigatve Unit to seek your response to the allegations misconduct pursuant to Art. 17 of Circ. No. 342, and to provide you ‘opportunity to be heard. This interview will take place on rl ‘Thursday, 10 September 2016 at 13:30 hours in the Munich Isar building, Room 126. ‘The investigative unit will be represented by duly authorised investigators, as foreseen in Article 13 (2) of Circ. No. 342. The interview will be ‘conducted in your preferred official language. 3. Art. 8 of Circ. No, 342 also provides for the duty of all staff members to ‘cooperate fully in the investigative process, which includes being available for meetings with the investigators, providing truthfully and to the best of your abilty and knowledge all information which may reasonably have bearing on the case, and answering all pertinent ‘questions. 4. You may be accompanied to the interview by another staff member as ‘an observer, who is reasonably available, and who is not connected to the matter under review. The presence of such a person will not relieve you of the obligation to respond personally to questions put before you. Please note that only EPO staff members are allowed as observers to the interviews. 5. The interview will be audio recorded or recorded in writing. After the conclusion of the interview, you will be provided @ copy of the record for your comments, if any, in due course. Kindly note that the Investigative Unit erioys fll clscreton regercing the timing of the provision of the interview record. You wil, however, be provided @ copy before the conclusion of the investigative process. 6. We would also like to ask you to bring any relevant information in your possession, including correspondence. The information provided by you may be used in Investigative Unit's report to the appointing authority, who may then decide on further steps. 7. The duty to cooperate in this procedure includes providing the persons ‘conducting the review with any information or materials that relate to the ‘alleged misconduct. You have a right to respond to the allegations made against you and may be requested to do so within a reasonable period of time. You are encouraged to identify any witnesses whom you believe to ‘possess information material to the allegations and provide whatever ‘documents to support your position. 28. At the end of the investigative process you will be provided with a written ‘Summary of the findings, as foreseen in Art. 15 Circ. No. 341 and Art. 18 of Cire, No. 342, and you will be given an opportunity to comment on it. A. final report, along with your comments will be submitted to the President. 9. Art 4 of Circulars No, 341 and No. 342 provides that you may discuss this matter with: () staff representatives: (i) at no expense to the EPO, a (i) a health professional; and (iv) family members. Please note that, while you may, at your own expense, consult a about this matter, the investigative unit will only communicate with EPO. ‘employees directly. We kindly remind you of your obligation to notify the investigative unit if you seek advice or support from staff representatives or legal counsel. We further draw attention to the fact that disciplinary action may be taken against you if you, or any of the abovementioned Persons, by intent or negligence violate the obligation to confidentiality. 10, Retaliation, or the threat of retaliation, or attempts to influence any Person who provides information regarding suspected misconduct or who cooperates or provides information in connection with the brocess, is prohibited, Art. 14 (5) Circ, No. 341 and Art. 7 Cire. No. 342. This case is registered with the number C-071. Please refer to this case number in future correspondence with this unit. If you have any questions about the investigative process, please do not hesitate to contact me. Attached please find Circulars No. 341 and No. 342 and the related brochure for your information, jative Unit