Labour & European Law Review Weekly Issue 329 25 July 2013
European law prohibits employers from treating workers who go on parental leave less favourably compared to those who don’t. In Riežniece v Zemkopības ministrija, the Court of Justice of the European Union (CJEU) held that there was nothing to stop employers from dismissing a worker who had taken parental leave as long as it was not because they had taken or applied for the leave.
Ms Riežniece, one of four principal legal affairs advisers in the ministry’s administrative department, was subject to an annual performance assessment. As she was on parental leave from November 2007 to May 2009, her last appraisal was in 2006.
In 2009, as part of a reorganisation, the department announced that it was going to abolish one of the four posts. All four officials were assessed using the criteria from the 2009 performance appraisal which differed from those used in 2006.
As Ms Riežniece was still on leave, her employer relied on her 2006 appraisal to make the assessment. She was ranked last. On 7 May she accepted a post in another department, but was told at the end of May that it was also being abolished and she was dismissed. She claimed that the decision to dismiss her was unlawful.
Decisions of lower courts
After her claim was rejected by the lower courts, Ms Riežniece appealed to the Latvian Supreme Court. It asked the CJEU to answer two main questions:
- Was it indirectly discriminatory to rely on an old annual performance assessment (but use new criteria) to assess a civil servant in her absence, compared to workers who had not gone on leave and were assessed on a much more recent period?
- Did EU law preclude the dismissal of a female worker who had been transferred to another post at the end of her parental leave following that assessment?
The CJEU said that there was nothing to stop employers from dismissing a worker who had taken parental leave as long as it was not because they had taken or applied for the leave. Nor was there anything to stop them from assessing someone who had taken parental leave with a view to transferring them to an equivalent or similar post.
However, if more women than men took parental leave in Latvia (and this was for the national court to decide), employers had to ensure that they did not place workers who had taken the leave in a less favourable situation to those who had not, when assessing them for redundancy or transfer. In particular, they had to ensure that they did not transfer a female worker returning from leave to a post which they knew was about to be abolished, if they could have allowed her to return to her original job. It was for the national court to decide whether that had happened in this case or not.
The CJEU said that it was acceptable for the ministry to assess the workers concerned by looking at their most recent period of work, as long as the assessment criteria they used did not place workers who were on leave (and therefore not at work during the period immediately preceding the assessment) at a disadvantage.
It also stipulated that the assessment must apply to everyone who might be affected, based on criteria which were “absolutely identical”, irrespective of whether the worker had been on parental leave or not. In particular, they must not require the physical presence of workers as that would discriminate against those on leave.
As the criteria used for the 2006 performance appraisal in this case only partially overlapped with those used in 2009 and did not have the same objectives, the referring court had to decide two points. The first was whether the overall mark given to Ms Riežniece resulted from the use of criteria which she could not satisfy because she was on leave and, secondly, whether her results from the 2006 performance appraisal were used objectively in 2009.