Probation period in an Estonian employment contract

How long is the probationary period and can it be changed?

The probationary period is four months from the day the employee starts work. Its purpose is to assess whether the employee's health, knowledge, skills, abilities and personal qualities meet the level required for the work (TLS § 10¹ lg 1) [1].

The employment contract may provide that no probationary period applies or that it is shorter (TLS § 10¹ lg 2) [1]. The Act does not provide for agreeing on a longer probationary period. An agreement that deviates from the Act to the employee's detriment is void, unless the Act itself allows such an agreement (TLS § 2) [5].

Additional rules apply to fixed-term contracts:

• if a fixed-term contract is concluded for up to eight months, the probationary period may not be longer than half of the contract's term (TLS § 10¹ lg 3) [1];
• if a fixed-term contract is extended, or contracts are concluded one after another for similar work, no new probationary period applies (TLS § 10¹ lg 5) [1].

Does illness or holiday extend the probationary period?

Time during which the employee was prevented from performing their duties does not count towards the probationary period, in particular when the employee was temporarily incapacitated for work, performed different duties than usual while working on a sick note, or was on leave (TLS § 10¹ lg 4) [1]. By that amount of time, the probationary period ends later than four months after starting work.

How can the contract be terminated during the probationary period?

Both fixed-term and open-ended employment contracts may be terminated during the probationary period (TLS § 86 lg 1) [2]. The notice of termination must be given during the probationary period; a notice the other party has not received has not taken effect (Supreme Court (Riigikohus) judgment 3-2-1-52-14) [6]. Keep the following in mind.

• Notice. At least 15 calendar days' notice is required: „Töölepingu võib katseajal üles öelda vähemalt 15-kalendripäevase etteteatamistähtajaga.“ [3] (translation: during the probationary period the employment contract may be terminated with at least 15 calendar days' notice). If the employer gives less notice, the employee is entitled to the average daily wage for each working day by which the notice fell short (TLS § 100 lg 5) [7].
• Form. The contract is terminated by a notice in a form that can be reproduced in writing; a notice made in breach of the form requirement, or a conditional notice, is void (TLS § 95 lg 1) [4].
• Reasons. The employer must give reasons for the termination, also in a form that can be reproduced in writing (TLS § 95 lg 2) [4]. Failing to do so does not affect the validity of the termination, but the party in breach must compensate the other party for the resulting damage (TLS § 95 lg 3) [4].
• Prohibited reasons. The employer may not terminate the contract for a reason that contradicts the purpose of the probationary period (TLS § 86 lg 4) [2]. According to the Supreme Court, an employer terminating because the probation was not passed can justify this only with circumstances showing how the employee copes with the work (RK 3-2-1-52-14) [6]. The general restrictions on termination also apply: for example, the employer may not terminate the contract because the employee is pregnant or entitled to maternity leave (emapuhkus) (TLS § 92 lg 1 p 1) [8].

A termination without a legal basis or in breach of the legal requirements is void (TLS § 104 lg 1) [9]. However, you must rely on this in time: an action to a court or an application to the labour dispute committee (töövaidluskomisjon) must be filed within 30 calendar days of receiving the notice of termination (TLS § 105 lg 1) [10]. Otherwise the termination is valid from the outset (TLS § 105 lg 2) [10].

What the law says

• „Töötajale rakendub tööle asumise päevast arvates neljakuuline katseaeg“ [1] (translation: a four-month probationary period applies to the employee from the day they start work; TLS § 10¹ lg 1) – the probationary period follows from the Act; it does not have to be written into the contract.
• „Töölepinguga võib kokku leppida katseaja kohaldamata jätmises või lühendamises.“ [1] (translation: the employment contract may provide that the probationary period does not apply or is shortened; TLS § 10¹ lg 2).
• „Tööandja ja töötaja võivad tähtajalise ja tähtajatu töölepingu üles öelda katseaja jooksul.“ [2] (translation: the employer and the employee may terminate a fixed-term or open-ended employment contract during the probationary period; TLS § 86 lg 1).
• „Tööandja ei või töölepingut üles öelda põhjusel, mis on vastuolus katseaja eesmärgiga.“ [2] (translation: the employer may not terminate the employment contract for a reason that contradicts the purpose of the probationary period; TLS § 86 lg 4).

What to do

1. Check your employment contract: is the probationary period excluded or shortened (TLS § 10¹ lg 2) [1]? For a fixed-term contract, also check its term (TLS § 10¹ lg 3) [1].
2. Work out when the probationary period ends: four months from the first working day, plus any time when work was prevented, such as temporary incapacity for work or leave (TLS § 10¹ lg 1 and 4) [1].
3. If you want to end the contract during the probationary period, prepare a notice of termination in a form that can be reproduced in writing, without conditions (TLS § 95 lg 1) [4]. Deliver it so that the other party receives it within the probationary period, and keep proof of receipt (TLS § 86 lg 1) [2]. An employer must add the reasons (TLS § 95 lg 2) [4].
4. Give at least 15 calendar days' notice (TLS § 96) [3].
5. If your employer terminated the contract and you believe there was no legal basis or the requirements were breached, file an application with the labour dispute committee or an action with a court within 30 calendar days of receiving the notice (TLS § 105 lg 1) [10]. Applying to the labour dispute committee is free of state fees (riigilõivuvaba) under the Labour Dispute Resolution Act (töövaidluse lahendamise seadus, TvLS) (TvLS § 15) [11].

Frequently asked questions

Does a probationary period apply if the contract does not mention it?

Yes. The probationary period applies by law from the first working day (TLS § 10¹ lg 1) [1]; it is excluded or shorter if the employment contract says so (TLS § 10¹ lg 2) [1].

Does the employer have to give reasons for terminating during probation?

Yes, the employer must give reasons in a form that can be reproduced in writing (TLS § 95 lg 2) [4]. Missing reasons do not make the termination invalid, but the employer must compensate the resulting damage (TLS § 95 lg 3) [4].

Does sick leave extend the probationary period?

Time when the employee was temporarily incapacitated for work or otherwise unable to perform their duties, as well as time on leave, does not count towards the probationary period (TLS § 10¹ lg 4) [1].

Does a new probationary period start when a fixed-term contract is extended?

No. When a fixed-term contract is extended or contracts are concluded one after another for similar work, no new probationary period applies (TLS § 10¹ lg 5) [1].

What happens if the employer did not observe the notice period?

The employee is entitled to the average daily wage for each working day by which the notice fell short (TLS § 100 lg 5) [7].