Redundancy Selection and Parental Leave

The ECJ has been asked to consider how an employer should conduct redundancy selection where a potentially redundant employee is returning from parental leave.

In Riežniece v Zemkopības ministrija, R took parental leave between November 2007 and May 2009. Just before she returned to work there was a reorganisation of her division resulting in one adviser role being eliminated. Four employees, including R, were assessed to see who should be made redundant.

The criteria used for assessment were those used from the 2009 appraisal process which R had not undergone as she was on parental leave. These criteria differed from those used in R’s 2006 performance appraisal before she went on parental leave. R was ranked based on her 2006 appraisal, achieving a lower score in the redundancy assessment than she had received in her appraisal and coming last overall. She was selected for redundancy.

The ECJ ruled that the method for assessing employees must not disadvantage those who have taken parental leave. Although assessment of workers over two different periods is not ideal, it can be appropriate where workers who have taken parental leave are absent during the period immediately preceding the assessment, provided that the selection criteria used do not disadvantage the worker who has been absent. In particular, the selection exercise must be based on criteria which are absolutely identical for all potentially affected employees, including those on parental leave.

If the selection criteria used in the 2009 exercise had placed R at a disadvantage, this would give rise to indirect sex discrimination contrary to the Equal Treatment Directive.

It is clear from this case that employers selecting for redundancy must apply the same criteria to all employees, irrespective of whether they have recently returned from parental leave. Employees may be assessed over different periods but only where this does not disadvantage those who have taken parental leave. In practice this is likely to cause difficulties for employers. They may not know until after assessment whether the chosen selection criteria or the use of different assessment periods disadvantages an employee who has been on parental leave. Employers may instead have to adopt entirely neutral criteria, such a length of service, but these will not necessarily take account of the needs of the business going forward. In addition, using length of service on its own has its own inherent risk of being indirectly discriminatory on grounds of age and sex.