Nadežda Riežniece v Zemkopības ministrija and Lauku atbalsta dienests.
Date: 2013-06-20
12. The Labour Code (Darba likums, Latvijas Vēstnesis , 2001, No 105), in the version thereof applicable to the facts of the main proceedings, provides in Article 156:
‘1. All workers shall be entitled to parental leave in the event of birth or adoption of a child. That leave shall be granted for a maximum period of 18 months, until the date of the child’s eighth birthday.
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3. The period during which the worker is on parental leave shall be considered to be a period of work.
4. Workers taking parental leave shall retain their previous employment. If that is not possible, the employer shall guarantee them similar or equivalent employment, on working and employment conditions which cannot be less favourable.’
17. Ms Riežniece took parental leave from 14 November 2007 to 6 May 2009.
31. As is apparent from the first recital in the preamble to the Framework Agreement on Parental Leave and from paragraph 5 of its general considerations, the Framework Agreement constitutes an undertaking by management and labour to introduce, through minimum requirements, measures to promote equal opportunities and treatment between men and women, by offering them an opportunity to reconcile their work responsibilities with family obligations (Case C-116/08 Meerts  [2009] ECR I‑10063, paragraph 35, and Case C‑149/10 Chatzi [2010] ECR I‑8489, paragraph 56).
32. To that end, the Framework Agreement on Parental Leave enables new parents to take a break from work to devote themselves to their family responsibilities, whilst giving them the assurance, set out in clause 2.5 of that agreement, that they will be entitled to return to the same job at the end of the leave. During a period freely set by each Member State subject to a minimum duration of three months, and in accordance with detailed rules left to national legislatures to determine, the new parents are thus able to provide their child with the assistance that his or her age requires and to make provision for measures organising family life with a view to their return to work ( Chatzi , paragraph 57).
34. As stated in clause 2.4 of the Framework Agreement on Parental Leave, workers must be protected against dismissal ‘on the grounds of’ an application for, or the taking of, parental leave in accordance with national law, collective agreements or practices.
36. Consequently, the Framework Agreement on Parental Leave does not preclude a situation where an employer, in the context of the abolishment of a post, proceeds with the assessment of a worker who has taken parental leave with a view to transferring that worker to an equivalent or similar post consistent with that worker’s employment contract or relationship. This also holds true where the employer intends to reduce the number of workers in all of the State administrative departments due to national economic difficulties. An employer is allowed to reorganise its departments in order to ensure efficient management of its organisation, subject to compliance with the applicable rules of European Union law.
38. It should be borne in mind in that regard that Article 3(1)(c) of Directive 76/207 prohibits discrimination on grounds of sex as regards working conditions, which include the conditions applicable to a worker who has taken parental leave returning to work (see, to that effect, Case C‑320/01 Busch [2003] ECR I‑2041, paragraph 38).
39. The Court has consistently held that indirect discrimination arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men (see, in particular, Case C‑1/95 Gerster  [1997] ECR I-5253, paragraph 30, and Case C‑123/10 Brachner [2011] ECR I-0000, paragraph 56).
40. Moreover, as observed previously by the Court in Case C‑333/97 Lewen [1999] ECR I‑7243, paragraph 35, on the basis of indications by the national court, women take parental leave far more often than men. It is for the national court to ascertain whether, in the Member State concerned, a much higher number of men than women take parental leave, with the result that women are more likely than men to be affected by measures such as those at issue in the main proceedings.
47. It should be observed in regards to that argument that, unlike workers who have taken parental leave, it is true that workers who have remained in active service have had the opportunity to acquire more experience, which generally enables those workers to perform their duties better (see, to that effect, Case C‑17/05 Cadman  [2006] ECR I‑9583, paragraphs 34 and 35). However, the fact of being able to perform one’s duties better is merely a possibility for those workers who have remained in active service, since mere presence at work does not guarantee that a worker’s results will necessarily improve.
50. Under clause 2.5 of the Framework Agreement on Parental Leave, at the end of parental leave the worker has the right to return to his or her post or, where this is not possible, to an equivalent or similar job consistent with their employment contract or employment relationship.
51. It is therefore for the referring court to ascertain whether, in circumstances such as those of the main proceedings, it was not possible for the employer to return Ms Riežniece to her post and, if so, whether the work to which she was assigned was equivalent or similar and consistent with her employment contract or employment relationship.
54. The employer may not render nugatory the right of a worker who has taken parental leave to be transferred to another post, in accordance with the conditions laid down in clause 2.5 of the Framework Agreement on Parental Leave, by offering that worker a post which is due to be abolished.