Riezniece v Zemkopibas ministrija arose out of a redundancy selection exercise in the Latvian civil service. In 2009 the department had decided to abolish one of its adviser posts, based on performance appraisal criteria from that year. The claimant was not at work in 2009, so she was assessed using 2006 performance (which was based on different criteria). She was told that her post was being abolished and she was moved to an adviser role in another department. But shortly after she transferred, that post was also abolished and her employment ended.

The ECJ decided that, whilst there is nothing to prevent the dismissal of a worker who has taken parental leave, provided the dismissal is not because of taking leave, there were two potential problems in this case:

  • The claimant had to be allowed to return to the same or a similar post where possible; and where the employer knew, when arranging the transfer, that the new post was due to be abolished, that would be unlawful.  
  • If it was the case that a much greater number of women than men take parental leave, employers cannot assess workers in their absence on less favourable criteria. Different periods of assessment can be used for those on leave and those on active service, provided the criteria do not place those who have taken leave at a disadvantage.

This case emphasises the difficulties of evaluating someone on parental leave, or on maternity leave, where there is a redundancy and competition with someone who has not been on leave. Employers must ensure they do not treat those on leave less favourably, whilst at the same time avoiding the situation in Eversheds Legal Services Ltd v De Belin, where inflating the score of an employee on maternity leave in a redundancy selection process was sex discrimination against her male colleagues.