A poll conducted in the UK laid bare disturbing figures: one in seven women are made redundant after maternity leave. It is quite common that when the employee goes back to her role, she finds her job being carried out by someone else and her clients assigned to other employees, making her contribution unnecessary. In the eyes of the employer, redundancy is unavoidable.

A common misconception held by employers is that they cannot make an employee on maternity leave or a pregnant employee redundant. An employer is not prevented from making such an employee redundant, provided that the employer does not discriminate. This is achieved by using selection criteria that are objective and measurable rather than subjective and based on the employer’s personal opinion.

A recent ruling delivered by the Court of Justice of the European Union (CJEU) in the names Riezniece v Zemkopibas Ministrija arose out of a redundancy selection exercise in the Latvian civil service. It contains some useful guidance to employers when it comes to laying off. The case focuses on how to evaluate an employee on parental leave or maternity leave, when there is a redundancy or promotion situation, and the individual is competing with another employee who has not been on leave.

The claimant in this case acted as a principal adviser to the Latvian Government’s Administrative Department’s legal affairs division. She took parental leave for a period of 18 months. During her absence, as part of a structural reorganisation, one of the posts of principal adviser was abolished.

In order to determine which official would be affected, the performance and qualific-ations of four officials, including the claimant, were assessed using identical criteria based on a performance appraisal conducted in 2009. Since in 2009 the claimant was not at work, the appraisal that was used for her assessment was that conducted three years earlier before she took parental leave.

The criteria used for the appraisals differed in some respects. The claimant, who obtained a lower overall mark than what she had been given in her previous performance appraisal, ranked last. She was told that her post was being abolished and she was moved to an adviser role in another department. But shortly after, that post was also abolished and her employment in the public service was terminated. She brought an action on the basis of unfair dismissal.

An employee selected for redundancy after parental leave must be offered a legitimate alternative role

The Latvian courts referred the case to the CJEU for a preliminary ruling. The CJEU was called in to consider whether the redundancy selection exercise in the Latvian civil service had been carried out in line with EU employment laws. The court ruled that employers are not able to penalise workers who have taken parental leave when selecting for redundancy.

In its decision, the court confirmed that where a much higher number of women than men took parental leave, any redundancy assessment should cover all staff affected by the changes and identical assessment criteria for all staff are used. The CJEU confirmed that employers may dismiss employees who have taken parental leave, as long as they are not dismissed for applying or taking such leave. The court affirmed that it is unlawful for an employer to transfer an employee who has taken parental leave into a post which it knows is to be abolished.

The judgment does not spell out a prohibition from using historical performance information of the employee, but clearly sets out that this must not create a disadvantage to that employee who is absent due to her leave. An employer may, in the context of a redundancy situation, proceed with the assessment of a worker who has taken parental leave with a view to transferring that worker to an equivalent or similar post. In addition, an employee who has taken a period of parental leave over four weeks is entitled to return to the job in which they were employed before their absence or, if this is not reasonably practicable, to another job which is both suitable and appropriate for them to do in the circumstance.

The judgment acts as a useful reminder for employers not to treat those on leave less favourably. An employee selected for redundancy following a period of parental leave must be offered a legitimate alternative role within the organisation where it is practical and appropriate to do so.

Josette Grech is an associate with Guido de Marco & Associates and heads its European law division.

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