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Leia murele lahendus

Sa ei ole oma murega üksi. Siit leiad vastuse erinevatele diskrimineerimist puudutavatele küsimustele. Oleme siin selleks, et Sind aidata.

If the organisation of work changed in the time an employee was on parental leave and their former duties have been divided between other employees, the position or even the department has been liquidated due to the structural changes, does the employer have to offer the employee a job and what kind of job should it be?

Employers have the right to reorganise work in their companies. An employer may cancel an employment contract if the continuance of the employment relationship on the agreed conditions becomes impossible due to a decrease in the work volume or reorganisation of work caused by economic circumstances (subsection 89 (1) of the Employment Contracts Act).

For example, an employee may be laid off due to the reorganisation of work if a structural change is made for the reason that the work agreed with the person to be laid off is no longer done at the employer’s organisation. In the event of a dispute, the employer must be able to prove that the work ended or the work volume decreased.

There is no basis for laying off an employee if only a formal structural change has been made, such as a change in the name of a position or department, or if the position has been moved to another unit as a result of a structural change.

If the employer has decided that, during the period of absence of the employee on parental leave, their work will be done by other employees, the employer must reinstate the previous working arrangements when the employee on parental leave returns to work. An employer must provide an employee with the work agreed on (clause 28 (2) 1) of the Employment Contracts Act).

An employee coming back from parental leave must be able to return to their previous job.
If the position or even the department of an employee returning from parental leave has been abolished due to a structural change, but the work still exists, the employee returning from leave must be reinstated and the employee returning from parental leave cannot be laid off. If the reorganisation of work means, for example, that two departments are merged into one and only one head of department remains as a result of the change, the position of head of department must be given to the employee who is raising a child under three years of age, because they may not be laid off because of the preferential right of keeping their job (subsection 89 (4) and (5) of the Employment Contracts Act).

The preferential right of parents raising children under three years of age to keep their job in the event of lay-offs means that the employer must exclude parents raising children under three years of age from among other employees doing the same job, i.e. they must keep them on the payroll. Only then can the employer choose the employees whose employment relationships will be terminated from amongst the employees to be laid off. The employer may keep the employees they deem necessary on the payroll, but the employer cannot compare a parent raising a small child with other employees in terms of qualifications (subsection 89 (5) of the Employment Contracts Act).

A person returning from parental leave must be offered their previous job back even if his or her child has reached the age of three. Employers have a duty to prevent unfavourable treatment of employees because of their parenthood or family obligations.

If the previous job cannot be given back to an employee returning from parental leave due to reorganisation of work, the employee must offer them another suitable job if possible (subsection 89 (2) of the Employment Contracts Act). The employer is not obliged to offer another job in the case of termination of operations or bankruptcy.
Clause 6 (2) 1) of the Gender Equality Act
Subsection 89 (1) of the Employment Contracts Act
Clause 28 (2) 1) of the Employment Contracts Act
Subsections 89 (4) and (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.