By Safia Tharoo
The Court of Justice of the European Union recently considered the case of Riežniece v Zemkopibas Ministrija, a case referred to them by the Latvian Courts.
Ms Riežniece was employed as a principal adviser in the legal affairs division of the Latvian Administrative Department. She took parental leave from November 2007 and May 2009 in accordance with the Latvian Labour Code. Prior to her return, her employer conducted a reorganisation which resulted in the deletion of one principal advisor post in her team. There were four people who held the same position, two of whom were on parental leave at the time of the reorganisation. The employer conducted an appraisal of the two employees who were at work, but for the two employees on parental leave, they used the results of their last performance appraisal. However, the criteria used in the performance appraisal was significantly different to that used in the appraisal for the purposes of the reorganisation. Ms Riežniece was ranked the lowest of the four individuals and was therefore informed that her employment would be terminated. She brought a claim in the Latvian courts challenging her dismissal.
Ms Riežniece argued that under European Union law, it amounted to discrimination for her to be assessed on the basis of different criteria from other employees in the same pool of selection. The Latvian Courts made a reference to the EU Court for guidance on the issue.
The EU Court acknowledged that indirect discrimination arose where a national measure, albeit formulated in neutral terms, worked to the disadvantage of far more women than men. It had previously been observed by the EU Court that women take parental leave more often than men. It was for the national court to ascertain whether this held true in the member state concerned. If it was the case, then in order to avoid discrimination, the method of assessing workers must not place workers taking parental leave in a less favourable situation than other workers. In this case, the employer proceeded with the assessment of the workers concerned in the light of their most recent period of actual work. Although the assessment of workers over two different periods may not be a perfect solution, it could be appropriate given that workers taking parental leave are absent during the period immediately preceding the assessment. However, it was necessary that the assessment criteria used were not such as to place those workers at a disadvantage. Therefore, the assessment had to be based on criteria which were absolutely identical to those which applied to workers in active service.
Moreover, the application of the criteria could not involve the physical presence of the workers – a condition which workers on parental leave were unable to fulfil. In Ms Riežniece’s case, the criteria of the two appraisals were different and the objective was different, and therefore the Latvian Courts needed to ascertain specifically whether the 2009 assessment was carried out in such a manner that the overall mark given to Ms Riežniece might result from the use of criteria which she could not satisfy because she was absent from work. If it could be shown that Ms Riežniece was placed at a disadvantage as a result of being assessed on the basis of the 2006 appraisal, then that would give rise to indirect discrimination.
This case is of equal importance both to employers who have employees who are on parental leave, and to employees themselves who take such leave as it makes clear that in a reorganisation, such employees must be assessed fairly and objectively alongside their colleagues who are at work. The employer must come up with a method of selection where all candidates can be assessed equally on the same criteria without causing any disadvantage to those who are on leave. That may be difficult in practice where, as was the case here, the criteria used for performance appraisals are materially different from those used for the purposes of selection. But unless a fair method can be found, an attempt to terminate the employment of someone on parental leave is likely to be deemed unfair.
Safia Tharoo, Barrister, 42 Bedford Row, London