Objectivity and fairness of dismissal and demotion of public servants

Dismissal and demotion due to restructuring or downsizing is based on objective criteria

Review of legislation on the organisation of public administration and on public servants of the central government administration with direct participation in the exercise of public authority and duties designed to safeguard the general interest of the state. Only the general civil service law and\or public service law, if it applies to this group of public servants, is analysed. Special legislation applying to public administration bodies in the central government administration, if it exists, is not considered. Provisions of the labour law are only considered if there is an explicit reference to them in the general legislation on the public/civil service regarding relevant aspects to assess these criteria, or if the labour law is the general law regulating employment in the public service. If there are separate regulations for public servants in top management positions, they are excluded from the analysis. Analysis determines whether legislation fulfils the elements below: a. Legislation establishes that restructuring and downsizing are only possible based on objective technical, financial, economic, and organisational reasons (for example, downsizing due to austerity measures, obsolescence of organisational functions and jobs due to technological evolution -e.g., digitalisation). b. In case of mergers of bodies without the abolition of functions, transfer of functions from one public body to another, or similar reorganisation processes that do not involve any significant change in functions to be performed, public servants keep their positions or are transferred to equivalent positions. c. Redundant public servants due to restructuring or downsizing procedures have the right to be transferred to adequate vacant positions in other bodies if such vacancies exist or otherwise to adequate severance pay. d. Individual redundancy, demotion or dismissal decisions are made based on objective criteria and in a non-discriminatory way. The general civil service and/or public service legislation must include all the elements above to score points. Otherwise, 0 points are awarded. If the general civil service and/or public service legislation fulfils the criterion, a reduction of points may be applied based on the checklist to assess SI 8.3, Criterion 2. The following six groups of institutions are assessed: ministries; customs administration, tax administration; foreign service; other three bodies reporting directly to the government, prime minister or ministers with the highest number of employees; regulatory authorities operating in the following domains: competition protection, energy, electronic communications, audio-visual media services. These groups correspond to groups a), b), c), d) e), and g) analysed in SI 8.3, criterion 2.

Dismissal and demotion due to inadequate performance is based on objective criteria

Review of legislation on the organisation of public administration and on public servants of the central government administration with direct participation in the exercise of public authority and duties designed to safeguard the general interest of the state. Only the general civil service law and\or public service law, if it applies to this group of public servants, is analysed. Special legislation applying to public administration bodies in the central government administration, if it exists, is not considered. Provisions of the labour law are only considered if there is an explicit reference to them in the general legislation on the public/civil service regarding relevant aspects to assess these criteria, or if the labour law is the general law regulating employment in the public service. If there are separate regulations for public servants in top management positions, they are excluded from the analysis. Legislation must fulfil all the elements below: a. Dismissal and demotion of public servants exercising public authority (demotion if contemplated in legislation), is possible as the result of recurrent negative appraisals over a sufficiently long period of time. As a rule, a dismissal should not occur before two negative appraisals over a total period of at least 12 months so that after a first negative assessment, the public servant can improve performance. b. Objectives and expectations must be clearly communicated to the public servant ahead of the appraisal period and be reasonable for their position, i.e., they must be based on the job duties. Legislation must include all the elements above to score points. The analysis of the scope for the point allocation is based on the checklist to assess SI 8.3, Criterion 2. The following six groups of institutions are assessed: ministries; customs administration, tax administration; foreign service; other three bodies reporting directly to the government, prime minister or ministers with the highest number of employees; regulatory authorities operating in the following domains: competition protection, energy, electronic communications, audio-visual media services. These groups correspond to groups a), b), c), d) e), and g) analysed in SI 8.3, criterion 2.

Other grounds for dismissal are objective

Review of legislation on the organisation of public administration and on public servants of the central government administration with direct participation in the exercise of public authority and duties designed to safeguard the general interest of the state. Only the general civil service law and\or public service law, if it applies to this group of public servants, is analysed. Special legislation applying to public administration bodies in the central government administration, if it exists, is not considered. Provisions of the labour law are only considered if there is an explicit reference to them in the general legislation on the public/civil service regarding relevant aspects to assess these criteria, or if the labour law is the general law regulating employment in the public service. If there are separate regulations for public servants in top management positions, they are excluded from the analysis. Analysis determines whether legislation includes other grounds for dismissal of public servants and, if so, whether they are objective, e.g. a disciplinary sanction, a final court ruling for a criminal offense, having lost the country’s citizenship -whenever it is a requirement to access the public service, permanent physical or mental disability incompatible with the job certified by the competent authority, etc. The analysis of the scope for the point allocation is based on the checklist to assess SI 8.3, Criterion 2.

Legislation guarantees due process to public servants in dismissal and demotion procedures

Review of legislation on the organisation of public administration and on public servants of the central government administration with direct participation in the exercise of public authority and duties designed to safeguard the general interest of the state. Only the general civil service law and\or public service law, if it applies to this group of public servants, is analysed. Special legislation applying to public administration bodies in the central government administration, if it exists, is not considered. Provisions of the labour law are only considered if there is an explicit reference to them in the general legislation on the public/civil service regarding relevant aspects to assess these criteria, or if the labour law is the general law regulating employment in the public service. If there are separate regulations for public servants in top management positions, they are excluded from the analysis. Analysis to verify whether dismissal and demotion procedures (demotion if contemplated in legislation) concerning public servants exercising public authority functions fulfil the elements below: a. Public servants have the right to be heard before a final decision is made, except in justified cases (e.g. dismissal due to a final court ruling for a criminal offense, or for having lost general eligibility requirements to work in the public service). b. They have the right to a written decision with a justification. c. They have the right to appeal dismissal and demotion decisions to the court. Legislation must include all the elements to score points.

In case of a favourable court decision, dismissed and demoted public servants have the right to reinstatement or to compensatory measures upon agreement of the parties or ruled by the court

Review of legislation on the organisation of public administration and on public servants of the central government administration with direct participation in the exercise of public authority and duties designed to safeguard the general interest of the state. Only the general civil service law and\or public service law, if it applies to this group of public servants, is analysed. Special legislation applying to public administration bodies in the central government administration, if it exists, is not considered. Provisions of the labour law are only considered if there is an explicit reference to them in the general legislation on the public/civil service regarding relevant aspects to assess these criteria, or if the labour law is the general law regulating employment in the public service. If there are separate regulations for public servants in top management positions, they are excluded from the analysis. Analysis to verify whether public servants dismissed or demoted have the right of reinstatement in case of a favourable court decision, or if legislation provides for other compensatory measures based on the agreement of the parties or ruled by the courts. Labour legislation may be considered if applicable.

Dismissal decisions due to reorganisation, disciplinary decisions and low performance totally or partially revoked by the courts and independent appeal bodies (%)

The number of final court decisions and final independent appeal bodies decisions revoking totally or partially dismissal decisions of public servants in the central government administration as a result of reorganisation, disciplinary decisions and low performance, is divided by the total number of dismissal decisions of public servants working in the central government administration as a result of reorganisation, disciplinary processes and low performance. Cases for which a final court ruling or a final decision of an independent appeal body is pending are excluded. Pending means also that the case was decided by a lower instance court or an appeal body and was appealed to a higher instance court or the independent appeal body. The criterion refers to public servants working in the central government administration. Data on dismissal decisions issued by the central government administration is collected for the two full calendar years before the last full calendar year. Data on final independent appeal bodies decisions and final court rulings is collected for the last three full calendar years and relates to independent appeal bodies decisions and final court rulings revoking totally or partially dismissal decisions issued by central government administration bodies in the two full calendar years before the last full calendar year. If centralised data is not available, 0 points are awarded. For the purpose of assessing this criterion, independent appeal body means an appeal body independent from the government. Points are allocated based on the percentage of dismissal decisions revoked by the courts (x): • x > 30% = 0 points. • 30% ≥ x > 0% = linear function. • x = 0% = 3 points.

Reported implementation rate of court decisions and independent appeal bodies decisions revoking totally or partially the dismissal of public servants (%)

The number of final court rulings or final decisions of an independent appeal body revoking totally or partially dismissal decisions of public servants issued by the central government administration as a result of reorganisation, disciplinary sanctions or low performance which were implemented within the last two full calendar years divided by the total number of final court rulings and final decisions of an independent appeal body revoking totally or partially dismissal decisions of public servants issued by the central government administration as a result of reorganisation, disciplinary sanctions or low performance during the same period, expressed as a percentage. The criterion refers to public servants working in the central government administration and subject to the civil service law or equivalent piece of legislation regulating employment relations of public servants exercising public authority. If centralised data is not available, 0 points are awarded. For the purpose of assessing this criterion, independent appeal body means an appeal body independent from the government. Points are allocated based on the reported implementation rate (x): • x < 60% = 0 points. • 60% ≤ x < 90% = linear function. • x ≥ 90% = 3 points.

Perceived political influence on dismissal decisions (%)

Analysis of survey responses from a sample of public servants to the following question or statement: “To what extent would you agree with the following statement: “I might be dismissed from the public service for political reasons.” Answer options are: Strongly disagree, Tend to disagree, Neither agree nor disagree, Tend to agree, Strongly agree, Do not know, Prefer not to answer. Points are allocated based on the percentage of respondents who replied “Strongly disagree” or “Tend to disagree” to the survey statement(x): • x < 50% = 0 points. • 50% ≤ x < 100% = linear function. • x = 100% = 3 points.