An employer may not terminate an employee’s employment contract because of the employee’s state of health if the employer can offer the employee another job or change the terms of their contract. An employee who can no longer work full-time due to his or her state of health must be offered a job that corresponds to their state of health. This can be a different job or the same job done by the employee on a smaller scale that does not harm their health and is manageable for them.
The employer’s obligation to offer another job arises from both the Employment Contracts Act (subsection 88 (2)) and the Equal Treatment Act. Pursuant to the Employment Contracts Act, the employee must also be given further training if necessary.
The purpose of the obligation to offer another job is to avoid cancellation of the employment relationship and to allow the employee to continue working, thereby ensuring his or her income. The obligation to offer a second job must therefore be interpreted broadly. Offers should not be limited to the specific professional work of the employee. The employer must also offer jobs for which they would have to change the working conditions if this would allow the employee to continue the employment relationship. Cancellation is not permitted if the employer has work to offer that the employee is able to perform.
The employer does not have to offer any jobs in the case of which the necessary changes would result in disproportionately high costs for the employer and the offer of another job cannot reasonably be expected under the circumstances (subsection 88 (2) of the Employment Contracts Act and subsection 11 (2) of the Equal Treatment Act).
The Equal Treatment Act prohibits unequal treatment of persons (including termination of employment or service contracts and dismissal) on the grounds of their disability (subsection 2 (2)). The state of health of a person and the definition of disability are interrelated.
In the Equal Treatment Act, disability is defined first and foremost as an impediment that restricts a person’s participation in social and working life. Whether or not the disability has been medically diagnosed is not of decisive importance. A medical condition that prevents an employee from working full time is covered by the definition of disability in the Equal Treatment Act.
According to the principle of equal treatment, employers must take appropriate measures where needed in a particular case in order to enable a person with a disability to participate in work (subsection 11 (2) of the Equal Treatment Act).
This explanation does not constitute legal aid in a specific case. Therefore, if you feel that you have been treated unequally, but you did not find a solution to your problem in this article, or if you have a question, please contact the Equality Commissioner by e-mail at avaldus@volinik.ee or telephone +372 626 9059. The anonymity of the person is guaranteed when contacting the Commissioner.
