Following a referral from a Latvian court, 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 an employee who is not on leave.

The ruling relates to Riezniece v Zemkopibas Ministrija, which concerned an employee, Ms Riezniece, who was selected for redundancy while absent on parental leave. Employees who had remained in active service were assessed on the basis of their most recent performance evaluation, while Ms Riezniece, who had been on parental leave for 18 months at the time, was assessed on the basis of her last appraisal, which was held before she went on leave and contained different criteria. Moreover, having been selected for redundancy, Ms Riezniece was offered and accepted an alternative role which was itself abolished some three months later, owing to financial difficulties in her new department.

Ms 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 and, furthermore, that she had been prevented from returning to an equivalent role, because her employer was aware that the new role was soon to be abolished.

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. Furthermore, an employer may not deny an employee his or her right to return to an equivalent or similar job by offering the employee a post which the employer knows is due to be abolished. A failure to comply with either of these principles would infringe both the Framework Directive on Parental Leave and, as a much higher number of women than men take parental leave, the Equal Treatment Directive.

Applying selection criteria to employees on maternity/parental leave is a tricky area 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. It must, however, adopt the same redundancy selection criteria as for other employees.