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Job Insecurity at the European Patent Office

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Job Insecurity at the European Patent Office

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Agora #87
13-16

A warning about the precariousness that seems to have crept into the European Patent Office in recent years.

With about 95% permanent staff and “only” around 5% fixed-term employees, the EPO seems from the outside in “Splendid isolation” when compared to most of the other international and European organisations. However, as it is often the case with figures, they do not tell the whole story and from an insider point of view the employment conditions and their recent trends at the EPO do not appear to be so “isolated” and even less “splendid”.

Due to the highly specific technical and legal skills requested from the majority of staff at the EPO, it has long been considered that fixed-term contracts were not the appropriate form of employment for this Office. The need of a lengthy and thorough training of new employees is a condition “sine qua non” to grant quality patents. This necessary time and resources investment could be lost for the organisation if fixed-term contracts were the norm, let alone the knowledge accumulated and shared by the newly recruited staff. Furthermore, at the individual level, “a Golden Cage Syndrome” exists at the EPO, since after some years of employment, staff tend to specialise in the field of patents and lose their general expertise. The expertise in the field of patents is not easily recognised in other fields. Staff leaving the EPO after some years of employment could find it very difficult to find employment elsewhere at comparable conditions. These considerations were valid in the past and are still valid today.

The introduction in 2018 of fixed-term contracts [1] as the norm for newly recruited employees, renewable up to a period of 10 consecutive years has created a new situation which goes against those considerations. If at this moment in time, mainly due to budgetary and contingency reasons, only 5% percent of the total work force at the EPO is made up of fixed-term employees, the present upper limit of 20% of fixed-term employees on the overall workforce combined with the extended duration of 10 years does not bode well for the future of the staff employment conditions and the future of EPO.

A draft circular to clarify these regulations is presently under discussion. Although there seem to be some minor positive improvements, the most important issues at stake, in particular the maximum duration of 10 years for fixed contracts have not been positively addressed as requested by SUEPO and the Staff Representation. A new orientation paper on mobility, regarding short term traineeships, internal and external mobility and employment, is also presently under discussion.

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[1] Modernisation of the EPO’s employment framework, CA/3/18, 23.02.2018

Historical Background

Before 2018 there were 3 types of fixed-term contracts at the EPO and the total number of staff under these contracts was limited to 5% of the overall workforce.
  • Euro Contracts[1]
    • Introduced in 1992
    • Maximum duration of 5 years plus exceptionally an extension of 2 years 
    • To respond to a temporary staff shortage for carrying out occasional tasks…
  • Non-renewable contracts (NRC)[2]
    • Introduced in 2009
    • Term of at least 6 months and at most 3 years
    • For the performance of short-term duties or to replace staff for a limited time
  • Five-years contracts for top level managers (Principal Directors and Vice-Presidents).

In October 2017 the EPO management started a reflection and a discussion on expanding the use of fixed-term contracts. After many reiterations and despite the opposition of SUEPO, the Staff Representation, and some national delegations, the Administrative Council approved in March 2018 a proposal for introducing fixed-term contracts[3]. Under these new and current regulations all newcomers in job groups 4-6, i.e. the non-managerial job groups, are de facto offered fixed-term contracts for a duration of up to 5 years, with the possibility to be renewed up to a total of 10 years of consecutive fixed-term appointments. The proportion of staff on fixed-term contracts is limited to a maximum of 20% of the total posts. There is no obligation from the EPO to convert a fixed-term contract to a permanent contract.

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[1] From April 2018 Staff can no longer be recruited under Euro contracts.

[2] From April 2018 Staff can no longer be recruited under NRC.

[3] Modernisation of the EPO’s employment framework, CA/3/18, 23.02.2018.

Concerns and Issues

Before going into a detailed analysis of these issues it is instructive to list the concerns voiced by many national delegations in the Administrative Council at the time.

The major points of criticism of the proposal were:

  • The lack of a proper financial impact analysis, in particular training costs
  • The lack of urgency, since the 5% allowed ceiling was not reached at that time
  • The difficulty for appointed examiners to find a job at the end of their contract
  • The damage to the EPO image as an employer
  • The damage to labour relationships
  • The risks for staff motivation and commitment for long-term high quality performance
  • That the risk of a lower incoming workload could be addressed in other ways
  • That 10 years fixed-term contracts are excessively long
  • That the profile of examiners is not similar to that of employees of other international organisations being benchmarked.

All these views, shared by SUEPO and the Staff Representation contradicted the mantras of the EPO administration, such as:

  • We need fixed-term contract to minimize the risks for the EPO and to guarantee financial and social sustainability
  • Other international organisations also have fixed-term contracts
  • We need fixed-term contracts to motivate people
  • The young generation wants fixed-term contracts
  • Times are changing, things get faster, we have to stay competitive.

Concerning this last statement, it should be noted that many countries with tight rules on fixed-term contracts are doing well, sometimes better than others.

A dedicated working group between the Staff Representation and the EPO administration was set up in January 2021, to specify the modalities and mechanisms for setting transparent rules for the extension/conversion of fixed-term contracts. As a result a draft circular is now under discussion. The Staff Representation has been very active in the working group and has published many articles all along[1]. In their analysis the Staff Representation found the following serious causes of concern with fixed-term contracts:

  • They represent the end of a feeling of “we” and “together” at the EPO
  • Fixed-term contracts will decrease engagement and collaboration in harsh contrast to Goal 1 of the Strategic Plan 2023 of the EPO
  • Job insecurity will increase stress and have a psychosocial impact on staff
  • Fixed-term contracts reduce the attractiveness of EPO, as suggested by the decrease of job applications in the last years
  • EPO became the best patent office in the world because of its social package and a widespread sense of pride and belonging of those working there. Fixed-term contracts will ruin the social package and the sense of pride and belonging.
  • Planning life for just the next few years is impossible if your contract is about to expire. In particular, it is extremely difficult to get a mortgage with a fixed-term contract and to find the right school for the children for only a few years.

The main cause of concern of the Staff Representation is however the possible duration of 10 years of the fixed-term contract period, which is considered far too long.

All these issues and causes of concerns are presently limited to “only” 5% of the total workforce, mainly because of low recruitment in the last years. Looking at the incoming workload and the age structure of the EPO staff it will not be long before the fixed-term contract employees will reach 20% of the total workforce. This could have a destabilising impact on the social and working structure of the EPO, and its long term sustainability.

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[1] “On fixed-term contracts”, Parts A-D; Central Staff Committee, 30.10.2020 – 25.05.2021.

A Proposal of the Staff Representation

In order to temper the above concerns the Staff Representation made a proposal[1] to the working group, based on feedback from colleagues on fixed-term contracts.

In this proposal the Staff Representation has gone to great lengths to try to reach a balanced solution that ensures long-term sustainability and flexibility while mitigating the effects of fixed-term contracts. The proposal is in line with the goals of the Strategic Plan 2023 and fosters some of the core value of the EPO: Fairness, Trust and Collaboration.

The main points of the proposal are the following:

  • 5 years is enough: after 5 years conversion should be the rule, extension the exception, 5-year contracts provide enough flexibility for planning.
  • Notice period of 1 year for decision on conversion and extension: it indirectly reduces staff turnover and is an important requirement for proper life planning.
  • Transparency and clarity: Transparent and clear criteria and processes for conversion/extension; involvement of staff representation in the process.
  • Balance of interests: The interest of the employee should also be taken into account, not only the interest of the organisation.
  • Equal treatment: no undue pressure on colleagues on fixed-term contracts; colleagues on fixed-term contracts should feel they are part of the organisation.

These points and their principles are also in line with the general principles regarding fixed-term contracts highlighted by the international jurisprudence[2] (ILOAT, CJEU, etc…)

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[1] “On fixed-term contracts”, Part D; Central Staff Committee, 25.05.2021.

[2] Ulrich, Gerhard. The Law of the International Civil Service: Institutional Law and Practice in International Organisations, Duncker & Humblot, 2019. ProQuest Ebook Central, pp 210-213.

Other Forms of Job Insecurity at the EPO

Beside fixed-term contracts there are some other forms of job insecurity at the EPO that should be mentioned and have the tendency to fall under the radar. I am referring primarily to the Pan-European Seal Professional Traineeship, intended to offer

high-achieving university graduates the possibility to learn, develop their skills and increase their employability. This programme exists since 2015 and has been positively received so far. In a recent draft orientation paper on professional mobility it is proposed to replace the Pan-European Seal programme by the Young Professionals programme which aims to significantly improve on that existing traineeship scheme, moving it to a first-job approach. The details of this new programme are not yet fully known. SUEPO and the Staff Representation will closely follow up the discussions and the developments.  Another form of job insecurity, unfortunately outside the scope and competence of SUEPO and the Staff Representation, is the case of employees of external companies working for the EPO. The EPO Staff Regulations do not apply to these employees of external companies. The issue is particularly important in the IT department, which often employs external contractors. There are reported cases of employees of these contractors that had 1 year fixed contracts, renewed by the contractors every year for more than 10 years.

Conclusions

Although job insecurity and fixed-term contracts “only” impact 5% of the whole workforce at the EPO presently, forecasts indicate that this figure will greatly increase in the near future. Given the specific nature of the work performed at the EPO, a substantial increase of fixed-term contracts could have a destabilising effect on the organisation and its long term sustainability. The consequences of the COVID crisis, the New Normal and the current dramatic international situation clearly add another layer of unpredictability.

Roberto Righetti

A PROPOS DE L’AUTEUR

Membre du Bureau Fédéral USF et Membre du Bureau SUEPO-TH.

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