No. It is prohibited to cancel an employment contract due to the employee often being at home to care for a sick child. The same rule applies during the probationary period.
Pursuant to the Employment Contracts Act, an employment contract may not be cancelled for the reason that the employee performs important family obligations (clause 92 (1) 2) of the Employment Contracts Act).
Employees are also protected by the Gender Equality Act, which stipulates that the unfavourable treatment of a person in relation to parenting and performing family obligations is discriminatory and thus also prohibited (clause 3 (1) 3), clause 6 (2) 1) and 7) and subsection 5 (1) of the Gender Equality Act).
A certificate of care leave issued to a parent taking care of a sick child is a type of a certificate of incapacity for work and releases the parent from the performance of his or her duties. During the period of release from work or service, the employer may not allow the employee to work and the employee has the right to refuse to work. These principles are laid down in the Health Insurance Act (subsections 52 (1) and (3) and subsection 61 (1)) and in the Employment Contracts Act (clause 19 2)).
The purpose of the probationary period is to ascertain whether the employee’s health, knowledge, skills, abilities and personal characteristics correspond to the level required for the performance of the work (subsection 6 (1) of the Employment Contracts Act). If an employer terminates an employment contract during a probationary period, they must justify and prove the circumstances that show that the employee is not suitable for the agreed work because of his or her health, knowledge, skills, abilities or personal characteristics.
During the probationary period, the employer may not cancel the employment contract on a ground that is in conflict with the goal of the probationary period (subsection 86 (4) of the Employment Contracts Act).
The cancellation of an employment contract on the ground that the employee is often at home with a sick child is in conflict with the goal of the probationary period and is therefore prohibited by law.
Clause 92 (1) 2) of the Employment Contracts Act
Clause 19 2) of the Employment Contracts Act
Subsection 6 (1) of the Employment Contracts Act
Subsection 86 (4) of the Employment Contracts Act
Clause 3 (1) 3) of the Gender Equality Act
Subsection 5 (1) of the Gender Equality Act
Clauses 6 (2) 1) and 7) of the Gender Equality Act
Subsections 52 (1) and (3) of the Health Insurance Act
Subsection 61 (1) of the Health Insurance 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.
