Judgment No. 2120
1. THE IMPUGNED DECISION IS SET ASIDE.
2. THE AGENCY SHALL PAY TO THE COMPLAINANT DAMAGES EQUAL TO THE DIFFERENCE BETWEEN HIS ACTUAL SALARY AND THE AMOUNT OF THE INCREASED SALARY AND OTHER BENEFITS WHICH WOULD HAVE BEEN ATTACHED TO THE GRADE P.4 POST, TO WHICH IT FAILED TO APPOINT HIM, FROM 25 FEBRUARY 2000 TO THE DATE OF HIS APPOINTMENT AT GRADE P.4 OR TO THE TERMINATION OF HIS EMPLOYMENT WITH THE AGENCY, WHICHEVER SHALL FIRST OCCUR.
3. IT SHALL PAY HIM 500 EUROS IN COSTS.
4. ALL OTHER CLAIMS ARE DISMISSED.
The complainant assumes that the provisions of a notice issued by the Organisation's secretariat, being subordinate legislation, are incompatible with the corresponding provisions of the primary legislation, namely the Staff Rules. The Tribunal considers that the notice "does not merely implement or clarify the Staff Rule; it purports to extend its reach substantially. It cannot stand."
complaint allowed; complaint allowed in part; organisation; administrative instruction; precedence of rules; staff regulations and rules; enforcement; provision; limits; condition; definition; difference; publication; purport; purpose
Considerations 10 and 11
A paragraph of a notice issued by the Organisation's secretariat stipulates that the spouse of a staff member shall normally not be employed in the same department as the staff member. The Tribunal considers that "the provision improperly discriminates between candidates for appointment based on their marital status and family relationship [...]. Discrimination on such grounds is contrary to the Charter of the United Nations, general principles of law and those which govern the international civil service, as well as international instruments on human rights. [...] All forms of improper discrimination are prohibited. What is improper discrimination? It is, at least in the employment context, the drawing of distinctions between staff members or candidates for appointment on the basis of irrelevant personal characteristics. Manifestly, the fact that two staff members may be married to each other is not relevant to their competence or the capacity of either one of them to fulfil their obligations. and, if it is thought that marital or intimate personal relationships between staff members may create management problems, such problems must be dealt with in ways that do not discriminate against either of them as a result of such relationships. The Tribunal notes that [the notice] as it is written, besides being too broad, is not even effective in dealing with the presumed possibility of undue influence or favouritism for it is silent on non-marital intimate relationships. It also fails to deal with marriages taking place after appointment".
complaint allowed; complaint allowed in part; grounds; international civil servant; organisation; general principle; equal treatment; international civil service principles; administrative instruction; international instrument; breach; provision; un charter; universal declaration of human rights; terms of appointment; assignment; competition; candidate; family relationship; post; qualifications; staff member's duties; definition; difference; publication; same