The European court has confirmed that employers must assess parents using the same criteria applied to other employees
The Court of Justice of the European Union (CJEU) has ruled on the manner in which an employee on parental leave should be evaluated in a redundancy selection exercise when competing against employees who are not on leave.
Facts
The ruling relates to a case called Riezniece v Zemkopibas Ministrija, referred to the CJEUby a Latvian court. The case concerned an employee, Nadezda Riezniece, who was selected for redundancy while absent on parental leave. Other employees at her organisation, who were not on parental leave, were assessed on the basis of their most recent performance evaluation. Riezniece, who had been on parental leave for 18 months at the time, was assessed on the basis of her last appraisal, held before she went on leave. This appraisal contained different criteria. Moreover, having been selected for redundancy, Riezniece was offered and accepted an alternative role, which was itself abolished around three months later, owing to financial difficulties in her new department.
Riezniece brought a claim, arguing that it was discriminatory to assess employees on parental leave on the basis of different principles from those applied to employees who had remained in active service. She also argued that she had been prevented from returning to work in an equivalent role, as her employer was aware that the new role was soon to be abolished.
European court
The CJEU ruled that although an employer is not prohibited from assessing employees on the basis of their last period of actual work, the selection exercise employed must not discriminate against workers on parental leave and, consequently, identical selection criteria must be applied to all employees affected by the redundancy. The court also ruled that an employer may not deny employees their right to return to an equivalent or similar job by offering them a post which the employer knows is due to be abolished. A failure to comply with either of these principles would infringe both the EU framework directive on parental leave and, in circumstances where a much higher number of women than men take parental leave, the equal treatment directive.
Comment
Applying selection criteria to employees on maternity/parental leave is a tricky area for employers and this case gives further guidance. An employer can pool people on maternity/parental leave and can assess them by reference to their performance prior to that leave: but it must adopt the same redundancy selection criteria as for other employees.
Paul Mander is a partner and Anna Henry is a trainee in the employment team at Penningtons
For more employment law
articles, visit HR-inform