In Riežniece v Zemkopības ministrija and anor the ECJ has held that the EU Framework Agreement on Parental Leave does not prevent an employer, in the context of the abolition of a post, from assessing a worker who has taken parental leave with a view to transferring that worker to an equivalent or similar post. However, it would be a clear breach of the Framework Agreement if the employer transferred that worker into a post which it knew would also be abolished. Furthermore, where more women than men take parental leave, and it was for the national court to decide if they did, the criteria used for assessing workers in the context of the abolition of a post must not place those who have taken parental leave in a less favourable situation than those in active service.
R, a principal adviser in the Latvian Government’s Administrative Department’s legal affairs division, took parental leave from 14 November 2007 to 6 May 2009. In 2009 the Department decided to abolish one of its principal adviser posts. In order to determine the official who would be affected by the abolition of the post, the criteria from the 2009 performance appraisal were used. Since R was not at work in 2009, she was assessed on the basis of her 2006 performance appraisal, although it was based on different criteria. R was subsequently informed that her post was being abolished and she was offered a principal adviser job in another department. R transferred to the new job on 7 May 2009 but, shortly afterwards, was notified that that post was also abolished and her employment terminated. R brought a claim arguing that her dismissal was unlawful.
On the case reaching the Senate of the Latvian Supreme Court, R argued that the EU Equal Treatment Directive (No.76/207) and the EU Framework Agreement on Parental Leave, annexed to the EU Parental Leave Directive (No.96/34), entitled female workers on parental leave to return to their post or an equivalent post and that, consequently, her employment should not have been terminated. Furthermore, the lower courts had misinterpreted the principle of non-discrimination in holding that workers in active service and those who have taken parental leave could be assessed on the basis of different principles. The Supreme Court made a reference to the ECJ, asking whether the Equal Treatment Directive and the Framework Agreement precluded the use of a different performance appraisal, using new criteria, and a worker’s dismissal following her transfer to a similar post.
The ECJ began by noting that the Framework Agreement on Parental Leave does not prohibit an employer from dismissing a worker who has taken parental leave, provided that they were not dismissed on the grounds of applying for or taking parental leave. Consequently, an employer may, in the context of the abolition of a post, assess a worker who has taken parental leave with a view to transferring that worker to an equivalent or similar post. It was for the national court to determine whether the post that R was assigned to was equivalent or similar to her previous job, as required by clause 2.5 of the Framework Agreement. However, if it found that R was offered a post which it knew would be abolished, this would be a clear breach of the Framework Agreement.
Furthermore, Article 3(1)(c) of the Equal Treatment Directive prohibits discrimination on the ground of sex as regards working conditions, including the conditions applicable to a worker who has taken parental leave returning to work. Where women are more likely to take parental leave than men, and it was for the national court to decide if they did, the method for assessing workers in the context of the abolition of a post must not place workers who have taken parental leave in a less favourable situation than those who have not taken parental leave. In the instant case, the employer assessed workers in light of their most recent period of actual work. Given that workers on parental leave were absent during the period immediately preceding the assessment, the ECJ considered it appropriate to use two different periods for assessment provided that the criteria used did not place workers who had taken parental leave at a disadvantage. In order to decide whether the use of R’s 2006 performance appraisal gave rise to indirect discrimination within the meaning of Article 2(2), the national court had to consider whether the assessment encompassed all workers likely to be affected by the abolition of the post, used identical criteria for workers who had taken parental leave and those in active service, and did not involve the physical presence of workers on parental leave, a condition they were unable to fulfil.
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