When can job seekers be asked to do a trial job? – Hiring contract

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The Supreme Court of Estonia has clarified that job applicants can only be asked to do short-term trial work and that the potential employer must be present while this is happening.

Work trial periods 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 concluded that until an employment contract is signed, an employer has the right, among other things, to assess the skills professional skills of a candidate. However, practical tasks, tests or similar activities aimed at determining the candidate’s competence should generally be limited to the simulation of a
short term work situation in the presence of the employer.

According to the recent Supreme Court decision, a situation in which a candidate performs work for the employer as part of a potential hiring process or “trial” is not acceptable, especially if the candidate performs tasks independently without the presence of the employer. Pre-contract negotiations should be limited to the initial identification of candidate skills: candidates should not perform unpaid work.

If, during the pre-contractual negotiations, an applicant for employment wishes to carry out the tasks which he would normally carry out if he were employed, there will be a presumption that the parties have entered into a contract of employment. The employer can disprove this by proving that the candidate has simply become familiar with the working arrangements or the way the work is done, and has not performed any actual duties or assignments. The employer can also prove that the candidate has understood and accepted that his professional skills will be tested before the employer decides whether or not to enter into an employment contract.

Note for employers

If employers wish to ask candidates to do a trial job, it is important to explain to them first (preferably by email) that the trial is a pre-employment skills assessment. Employers should also explain that the trial work does not imply that the candidate is already employed and that the employer will only announce its decision whether or not to hire the candidate once the trial work has been successfully completed. .

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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