Pursuant to the Employment Contracts Act (clauses 28 (2) 1) and 2) of the Employment Contracts Act, the employer must provide the employee who returned from parental leave with the same or an equivalent job and salary to the employee had before going on leave. Part-time work may only be offered if the employee requests it.
The Gender Equality Act also prohibits treating a person less favourably because of parenting and the performance of family obligations (clause 3 (1) 3) and subsection 5 (1) of the Gender Equality Act).
The principle of equal treatment means that the organisation of work must not be based on the preconceived notion that an employee who has become a parent wants to work part-time. It must be based on the employee’s will and decision. Part-time work is not necessarily a more favourable situation for a person returning from parental leave than full-time work. The employee may want to earn the same income as before, contribute as much as others, gain more experience or avoid anxiety over not being able to return to full-time work in the future. Also, all of the benefits paid according to average salary decrease when working part-time. The length of annual leave of a part-time employee must also be at least 28 calendar days per year, but the holiday pay is calculated based on the salary earned and is generally smaller in the case of part-time work.
The employer must inform the employee of the possibility to work part-time (clause 28 (2) 10) of the Employment Contracts Act), but if the employee does not want to change their working time agreement, they must be able to continue working full-time. The Employment Contracts Act stipulates specifically that an employer may not cancel an employment contract because a full-time employee does not want to continue working part-time or a part-time employee does not want to continue working full-time (clause 92 (1) 5) of the Employment Contracts Act).
If the employee wants to work part-time, the employer must consider the interests of both parties and, where possible, accommodate the employee’s request. For example, if the employee who was the replacement for an employee on parental leave is allowed to do the same job on a part-time basis, the employer should not refuse to allow the same conditions for the employee who returns from leave.
Clause 3 (1) 3); subsection 5 (1) of the Gender Equality Act
Clauses 28 (2) 1)-2) and 10), clause 92 (1) 5) of the Employment Contracts Act
The activities of an employer are also deemed to be discriminatory if the employer treats a person less favourably due to pregnancy, child-birth, parenting, performance of family obligations or other circumstances related to gender (subsection 6 (2) of the Gender Equality 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.
