An organisation may select any qualified candidate from an approved shortlist. But where the candidate selected was assessed below other recommended candidates, the reasons for that choice must be clear, relevant and supported by the record. In Verbruggen v. Secretary-General, UNDT Judgment No. 2026/094, the Tribunal examined the limits of selection discretion and the evidence needed to show that an unsuccessful candidate received full and fair consideration.
The judgment is notable not because the Tribunal chose a candidate itself, but because it scrutinised how the Administration justified choosing one candidate over others. It concluded that the selection rationale relied on factors that were inadequately explained, materially inaccurate or discriminatory.
The selection process
The complainant was serving as a P-5 Inter-regional Adviser in the UN Department of Economic and Social Affairs (DESA). She applied for another P-5 post, Inter-regional Adviser for Systems Thinking and Strategic Foresight for Policy Coherence and Integrated Planning.
Fifty-eight applications were released to the Hiring Manager. Four candidates, including the complainant, were shortlisted, interviewed and recommended. The Central Review Body endorsed the list. The interview panel assessed the complainant and two other candidates who were not selected as exceeding the requirements for the competencies assessed. The selected candidate was assessed as meeting the requirements.
The complainant’s fixed-term appointment expired on 31 December 2024. On 17 January 2025, the Under-Secretary-General for DESA selected another candidate. The decision referred to the organisation’s human-resources objectives, including gender and geographical considerations, and to giving due regard to candidates already in service. The selection was also described in the record as being made “on an exceptional basis”.
The complainant challenged her non-selection. The Tribunal’s task was not to decide who it would have appointed, but to determine whether the selection decision was lawful and whether the Administration had demonstrated that she received full and fair consideration.
The legal framework: discretion is broad, but not unaccountable
The Tribunal reaffirmed the organisation’s broad discretion in staff selection. Once the Central Review Body has endorsed a list of qualified candidates, the head of entity may select any candidate on that list. A candidate’s stronger assessment does not automatically create a right to appointment.
That discretion is nevertheless subject to legal limits. The selection process must comply with the applicable rules and be fair, transparent and non-discriminatory. The Administration must provide relevant and true reasons for its decision, supported by a documented record that is reasoned and objectively justifiable.
The Tribunal emphasised the significance of the comparative assessments in this case. The selected candidate was the only recommended candidate assessed as meeting the requirements, while the complainant and two other candidates were assessed as exceeding them. The Administration was not required simply to select the highest-assessed candidate. But when it selected the lower-assessed candidate, the record needed to explain why that candidate was nevertheless considered best suited.
The Tribunal found that it did not.
The stated reasons did not withstand scrutiny
The Administration relied on the selected candidate’s experience in economic research, policy development, the Sustainable Development Goals and financing for development. But the Tribunal found that this rationale conflicted with the documented assessment made during the recruitment process. The comparative record indicated that the selected candidate’s professional competencies had been assessed below those of the other three recommended candidates.
The Tribunal held that the decision-maker could not simply introduce a different comparative assessment at the final stage without explaining the departure from the earlier, documented evaluation. The purpose of judicial review was not to redo the interview panel’s work, but to examine whether the actual selection rationale was consistent with the record and the governing rules.
The Tribunal also examined the Administration’s reliance on gender. Three of the four recommended candidates were women, including the complainant and the selected candidate. Gender therefore did not distinguish the selected candidate from the complainant. The Tribunal found that the available gender figures did not provide a rational basis for preferring the selected candidate on that ground.
Geographical distribution was a permissible consideration under the UN Charter and the Staff Regulations, but it was not the paramount consideration. The paramount consideration remained securing the highest standards of efficiency, competence and integrity. The selection record did not explain how geographical representation had been measured, which statistics had been used, or why that factor outweighed the candidates’ comparative assessments. The Tribunal also found that the nationality figures used to suggest the complainant’s selection would make her country overrepresented were materially flawed.
The Tribunal further found that the nationality rationale amounted to prohibited discrimination. The post involved work with small island developing states, but nationality was not a stated qualification for the post. The Administration had not demonstrated that preferring a candidate because she was a national of a small island state was based on objective, reasonable criteria sufficiently connected to the functions of the post. The judgment does not hold that geographical considerations are impermissible. It requires that they be applied accurately, transparently and consistently with the paramount selection criteria.
The phrase “on an exceptional basis” was also unsupported. The record did not explain what was exceptional, or how that consideration related to the post, the candidates’ relative merit or the applicable rules. The Tribunal observed, in substance, that describing a decision as exceptional does not itself explain or justify it.
Integrity allegations: a duty to assess, not to presume
The complainant also referred to public allegations concerning the selected candidate’s previous role in a national-government financial matter. The Tribunal was careful to distinguish allegations from established facts. It did not find that the selected candidate had committed fraud or misconduct, or that she lacked integrity.
The issue was instead whether the Administration had meaningfully assessed the allegations in light of the post’s functions and the requirement to select staff of the highest standards of integrity. The record did not show whether the allegations had been considered, verified, or dismissed as irrelevant or unreliable. The Tribunal found that this lack of a documented assessment was a defect in the selection process. It did not make an adverse finding about the selected candidate.
The decision and remedy
The Tribunal concluded that the defects were cumulative and went to the core of the selection rationale: comparative merit, gender, geographical distribution, nationality, the unexplained claim of exceptional treatment and the absence of a documented integrity assessment. The Administration had therefore failed to make the minimum showing that the complainant received full and fair consideration. The non-selection decision was unlawful and was rescinded.
The Tribunal did not appoint the complainant, order a new selection process or find that she would certainly have been selected. The post had been advertised for an initial one-year period, which had already passed. Instead, it assessed her lost chance of appointment at 50 per cent and awarded compensation equal to 50 per cent of the net base salary, post adjustment and other emoluments she would have received during that one-year appointment, less any earnings to be deducted under the applicable mitigation principles.
The compensation was to be paid within 60 days after the judgment became executable, with interest at the U.S. prime rate. If it was not paid within that period, an additional five percentage points would be added to the rate. The Tribunal dismissed the claim for moral damages because the complainant had not established the required evidence of moral harm and causation.
Why the judgment matters
Judgment No. 2026/094 is a reminder that a shortlist gives the decision-maker discretion, not immunity from review. An organisation may choose among qualified candidates, but its reasons must be grounded in the documented process, based on accurate information, and consistent with the applicable criteria.
Where the chosen candidate was assessed below other recommended candidates, a bare reference to geography, gender, nationality or exceptional circumstances will not necessarily suffice. The record must explain how those considerations were applied and why they legitimately supported the final choice without displacing the paramount requirements of competence, efficiency and integrity.
The UNDT ruling therefore remains the latest published decision: it rescinded the non-selection decision and awarded compensation for the complainant’s assessed 50% chance of appointment. That result could change if UNAT issues a judgment.