Employers making redundancies from a selection pool including employees on maternity leave or other prolonged family leave should ensure that identical selection criteria are applied to all employees, or risk discrimination claims. However, given that the employees’ absence may mean they cannot be assessed at the same point in time as others, the ECJ has suggested that employers can use historic performance data when scoring those employees against the criteria, provided this does not disadvantage the employees.

The ECJ also confirmed that an employee’s right to return from certain types of prolonged family leave to a similar job will not be satisfied by the offer of a job which the employer knows will soon be eliminated. (Riezniece v Zemkopibas Ministrija C7/12)