Trial periods of work or tasks used as part of the hiring process are not regulated by the Estonian Employment Contracts Act, but are a fairly common practice that continues to cause uncertainty.
In a recent decision (No 2-20-5834/36), the Estonian Supreme Court found that until an employment contract is signed, an employer has the right to, among other things, assess a candidate’s work skills. However, practical tasks, tests, or similar activities aimed at determining the candidate’s skills should generally be limited to simulating a short-term work situation in the employer’s presence.
According to the recent Supreme Court ruling, a situation where a candidate performs work for the employer as part of the possible hiring process, or ‘trying out’ is not acceptable, especially if the candidate does work assignments independently without the employer present. Pre-contract negotiations should be limited to the initial identification of the applicant’s skills: candidates must not do unpaid work.
If during pre-contract negotiations, a job applicant wishes to perform the tasks s/he would normally do if employed, there will be a presumption that the parties have entered into an employment contract. The employer can refute this by proving that the candidate was merely acquainting themselves with work arrangements or how work is done, and did not do any actual work tasks or assignments. The employer can also prove that the applicant understood and agreed their work skills would be tested before the employer would decide whether or not to enter into an employment contract.
If employers do wish to ask candidates to do trial work, it is important to first explain to them (preferably by email) that the trial constitutes an assessment of skills before employment. Employers should also explain that trial work does not imply that the candidate is already employed, and that the employer will only announce their decision on whether to hire the candidate after the trial work has been successfully completed.