2022 – a revolutionary year in labour law, part III

Part III – Employee with caring responsibilities

In connection with the amendments to the Employment Contracts Act taking effect on 01.04.2022, we have prepared a series of articles to explain the new regulation and the changes therein in more detail. The aim is to highlight the major principal changes, add practical tips and highlight the most important information both for employers as well as employees.

In the first article, we took a closer look at the procedure for parental leave and benefits and explained new terms, in the second we focused on parental leave and related nuances, and this time we highlight the amendments originally planned for the Employment Contracts Act, but ultimately written into the Gender Equality Act, in connection with an employee with caring responsibilities. This amendment was caused by the need to bring the legislation in force in Estonia into conformity with the Directive (EU) 2019/1158 of the European Parliament and of the Council, i.e. the Work-Life Balance Directive, and therefore it was necessary to make minor improvements in relation to flexible work arrangements and parental leave.

Employee with caring responsibilities

An earlier version of the “Act to Amend the Employment Contracts Act and Other Related Acts” initially prescribed the introduction of § 18′ to the Employment Contracts Act, which would include the concept of an employee with caring responsibilities. Under this provision, an employee raising at least one child under the age of 8 or caring for a person who needs significant care or support due to a serious health problem would have the right to request flexible working conditions from the employer, including the right to perform their duties partially or fully by remote working on the basis of flexible working schedules or to work part-time.

In the final version, however, the concept of an employee with caring responsibilities was not specifically defined, and the concept described in § 3 of the Gender Equality Act was supplemented by an extension, according to which direct discrimination based on sex also includes less favourable treatment of a person in connection with pregnancy and childbirth, parenting, performance of family obligations or other circumstances related to gender, as well as gender-based harassment and sexual harassment and less favourable treatment of a person due to rejection of or submission to harassment.

In addition, the employee was given the right to request from the employer the possibilities of reconciliation of work and family life, including flexible working conditions. Flexible working conditions can mean, for example, a change in the place of work, i.e. temporary or permanent remote working. Also, a change in the time of work, i.e. working during different working hours than usual, or a change in the workload of the employee, for example, by working part-time.

Obligation of employer to respond

The right granted to an employee to request flexible working conditions does not automatically impose an obligation on the employer to offer such conditions to the employee. Upon receipt of such a request, the employer must consider the needs of the employee, taking into account also the possibility of combining them reasonably with the interests of the employer’s company, and is obliged to respond to the employee within 15 working days, justifying why he or she has refused to satisfy the request or postponed flexible working conditions. Even if the employer has responded to the employee, this does not deprive the employee of the possibility to request flexible working conditions again. This, in turn, can create a vicious circle in which the employee submits requests and the employer has to justify why he or she does not satisfy the requests. This is not a situation of lay-off because the work does not terminate under the conditions agreed in the employment contract, and therefore, if the employee is no longer able to work under these conditions, he or she should cancel the employment contract at his or her own wish.

Additional protection for the employee?

Similarly to employees who are pregnant or on maternity leave and other employees referred to in subsection 92 (1) of the Employment Contracts Act, an employer may not cancel an employment contract on the grounds that the employee has requested the flexible working conditions provided for in the Gender Equality Act. It should be kept in mind that the employer may cancel the employment contract only on the conditions prescribed by law.

But why is the additional protection of the employee uncertain? Namely, subsection 92 (2) of the Employment Contracts Act introduces reverse burden of proof, which means that the employer is obliged to prove that he or she terminated the employment contract on another basis and the termination was not due to the circumstances set out in the aforementioned section. Although until now, protection had been granted automatically to employees who were pregnant or raising a child under the age of 3, the same regulation will now be added to employees who have applied for or been on different parental leaves or employees who have been on the care leave provided for in the Health Insurance Act during the year before the cancellation of the employment relationship. Still, this is only the case if the employee is pregnant, entitled to maternity leave or has important family responsibilities. This means that asking for flexible working conditions does not automatically provide the employee with additional protection. However, being on care leave does.

For a better understanding, here are two examples:

1. the employee has asked the employer for flexible working conditions, but the employer cannot offer them. Pursuant to clause 92 (1) 7) of the Employment Contracts Act, the employer may not cancel the employment contract on this basis. If the employer were to cancel the employment contract on the basis of this example, the cancellation would be unlawful but the burden of proof would be on the employee.
2. the employee is on care leave with a child. The employer cancels the employment contract with the employee. A reverse burden of proof is applied, which means that the employer must prove that the cancellation of the employment contract was based on another reason permitted by law, otherwise it is an unlawful cancellation.

If the employment contract has been unlawfully cancelled, the employee has the right of recourse to a labour dispute committee or court in order to establish the voidness of the cancellation. Establishment of the voidness of the cancellation does not automatically terminate the employment contract, so the party who requested the establishment of the voidness must also apply for termination of the employment contract. If the employment contract is terminated by a labour dispute committee or court with an employee whose cancellation of the employment contract by the employer is void, the employee has the right to compensation. However, in the case of the amount of compensation, no distinction has been introduced for the employee with caring responsibilities at this point. Pursuant to the amendment to the Employment Contracts Act adopted on 22.11.2021, the employer shall pay compensation to an employee who is pregnant, who has the right to maternity leave or who has been elected as the employees’ representative in the amount of 12 months’ average wages of the employee instead of the previous 6 months if the employment contract is terminated by the labour dispute committee or the court after the voidness of the cancellation has been established. Upon termination of an employment contract on other grounds after establishment of the voidness of the cancellation in a labour dispute committee or by a court, the amount of compensation shall be the amount of three months’ average wages.

Conclusion

The amendments made so far may not be the last, and it is possible that the legislator will add the necessary provisions to make the situation more clear and unambiguous. Unless the concept of an employee with caring responsibilities is explained in law, it will be up to the courts to define it. Nonetheless, employers need to take these circumstances into account and follow the Gender Equality Act and Equal Treatment Act more in their day-to-day work in addition to the Employment Contracts Act.

If you have any questions on this subject or the subjects covered in the entire series of articles, please feel free to contact the Leinonen Tax and Legal Advice Department, where advisors will be happy to find an individual solution for each inquirer.

Author:  Keiu Rebane

Position: Legal Advisor

E-mail: keiu.rebane@leinonen.ee