The gender equality commissioner was approached with a question regarding whether excluding time spent on parental leave from the calculation of annual leave entitlement constitutes discrimination against employees on parental leave.

After analyzing the issue, Commissioner Christian Veske stated in an opinion sent to the Ministry of Economic Affairs and Communications (MKM) that, under the Equal Treatment Act, gender discrimination includes less favorable treatment based on pregnancy, childbirth, parenting or other gender-related circumstances.

The Employment Contracts Act requires employers to adhere to the principle of equal treatment.

"Equal treatment means that an employee must not be treated less favorably than others because of their family responsibilities," Veske noted.

He pointed out that the law provides exceptions in which certain periods are included in the calculation of annual leave entitlement. However, time spent on parental leave is not among these exceptions.

As a result, Veske asked the MKM for clarification as to why this period is excluded from the exceptions. The ministry responded by explaining that an employee's work status is suspended in the employment registry during parental leave. The information in this registry serves as the basis for determining social benefits tied to employment, such as health insurance or unemployment benefits.

Veske argued, however, that the presence or absence of data in the registry cannot be a justification for a substantive legal matter. "An employee's rights during parental leave cannot be dependent on whether their data is recorded in the registry," he stated.

Additionally, Veske disagreed with the ministry's justification that parental leave is significantly longer than other types of leave. While he acknowledged that an employee returning from parental leave could immediately take annual leave, potentially inconveniencing the employer, he argued that this is not a valid legal basis for treating employees on parental leave differently from those on regular leave or medical leave.

"Employees who combine different types of leave can also cause inconvenience to employers. Family-related obligations may always pose some level of inconvenience to employers, but this cannot justify excluding certain rights for employees fulfilling parental responsibilities," emphasized the commissioner.

Veske also referenced a ruling by the Tallinn Circuit Court in January of this year, which found that parental leave should be treated equivalently to other types of leave and included in periods that count toward pension eligibility. Based on this legal analogy, Veske concluded that parental leave, as defined in the Employment Contracts Act, is comparable to annual leave or medical leave, during which the employment relationship does not end.

Kristi Joamets, an advisor to the commissioner, told ERR that the commissioner found no objective justification during the proceedings for the restriction in the Employment Contracts Act that excludes time spent on parental leave from the calculation of annual leave entitlement.

"Parental leave exists because an employee is fulfilling parental responsibilities. The fact that parental leave can last until the child turns three cannot serve as a reason to treat employees on parental leave differently based on the duration of their leave. No one should be forced to forgo having a child out of fear of losing certain rights," Joamets explained.

She added that parental leave should be treated equivalently to other types of leave under Section 68 of the Employment Contracts Act, and as temporary work incapacity leave, which is included in annual leave entitlement calculations.

Joamets clarified that the commissioner is not outright declaring the current regulation discriminatory but noted that it may be discriminatory.

The commissioner recommended considering an amendment to the Employment Contracts Act to address this restriction. The Ministry of Economic Affairs and Communications has until December 27 to finalize its position on the matter.

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