In Riežniece v Zemkopības ministrija and another, the Claimant was a legal adviser in a Latvian Government post who took parental leave from November 2007 to May 2009. Before she returned the department was reorganised and a redundancy situation occurred. The employer needed to select one of the four employees for redundancy.
It devised criteria based on the 2009 appraisal process but the Claimant had not had an appraisal in 2009 because of her absence. In her case they used the 2006 appraisal, despite the criteria during the appraisal differing. As a result she achieved the lowest score and was selected for redundancy. She was offered an alternative post which she accepted but due to national economic pressures that role was abolished and she was dismissed.
The ECJ held that the employer’s redundancy criteria must not discriminate against workers who have taken parental leave as the law precludes assessment of employees who have taken parental leave on less favourable criteria than those who have not. Further, whilst an employer can dismiss an employee who has taken parental leave provided this is not on the grounds of that leave, it cannot negate its obligations on the right to return to a similar job by offering another job which is then removed.
The employer in this case fell foul of the Framework Agreement on Parental leave and as more women than men took parental leave they also fell foul of the Equal Treatment Directive as this was indirect sex discrimination. The matter was referred back to the national court to decide whether the 2006 criteria was used objectively in the 2009 exercise and whether the 2009 appraisal was carried out in such a way that she could not meet the criteria because she was on leave.
Whilst having two different assessment periods is not ideal sometimes it is necessary due to absence but the key in this case was that the criteria differed in the 2006 and 2009 appraisal. Also remember there has been recent case law which also suggests that giving someone full marks in this case would also be discriminatory and unfair for the colleague not selected.