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Redundancy and parental leave

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Thanks to Vanessa Latham of Berrymans Lace Mawer for preparing this case summary

When selecting for redundancy, can an employer assess workers who have been off work on parental leave on different criteria to those who have not been on leave?

No, says the Court of Justice of the European Union (CJEU) in Riezniece v Zemkopības Ministrija, a reference for a preliminary ruling.

According to the CJEU, where it is the case that a much higher number of women than men take parental leave, EU law precludes:

1) the assessment of workers in their absence, for the purpose of abolishing posts, on the basis of criteria less favourable than that applied to workers who did not take parental leave. Any such assessment must encompass all workers liable to be concerned by the abolition of the post and must be based on criteria which are absolutely identical to those applying to workers in active service. The implementation of those criteria should not involve the physical presence of workers; and

2) the dismissal of a female worker who has been transferred to another post at the end of her parental leave following that assessment, where it was not impossible for the employer to allow her to return to her former post or where the work assigned to her was not equivalent or similar and consistent with her post because, at the time of the transfer, the employer knew that the new post was due to be abolished.