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Trial day, does it precede for the employment relationship or is it part of it?
Employers often want to use the so-called “trial day” before formally concluding an employment contract, and situations where employees work free for the employer have proven to be a problem. In this article, we will give an overview of the trial day problems and the concluding an employment contract. In practice the trial day is used to evaluate the suitability of the employee in a practical work situation by the employer as well as to make sure that the employee is suitable for the job. This is particularly the case in areas where it is difficult to evaluate a person’s competence based on a mere interview and the employee’s CV. At the same time, Estonian legislation, court practice and industry guidelines do not recognise the possibility of a trial day.
First, we are pointing out that according to the Employment Contracts Act, an employment contract is considered concluded even if the employee begins to perform work that, according to the circumstances, can be expected to be performed only for remuneration – the absence of a written document of the employment contract does not mean the absence of an employment relationship. According to Employment Contracts Act art 4 (2) there is an essentially exhaustive so-called “trial day” regulation in the Estonian legal system. In the explanations prepared by the Ministry of Social Affairs to the Employment Contracts Act as well as in the materials of the Labour Inspectorate it is indicated that there is no possibility to implement a trial day in the Employment Contracts Act and in an employment contract (with the accompanying obligations, of course) is deemed to have been concluded upon commencing work.
A legitimate alternative to a trial day is the application of a probationary period, in the course of which the employer can evaluate the employee’s skills and personal qualities and suitability for the job. At the same time, the probationary period cannot be considered as a tool equivalent to a trial day in the employer’s arsenal, primarily because the probationary period is applied after concluding the employment contract, but the employer in the other hand wants to use the trial day to decide whether to conclude an employment contract with the employee. Even more, if the health, knowledge, skills, abilities, or personal qualities of the employee clearly do not correspond to the level necessary for work already in the first hours of the probationary period, the employer must notify the employee of the cancellation of the employment contract at least 15 calendar days in advance. In order to avoid this situation, it is worth to take an additional measure to evaluate the employee before they start working, which can be a so-called preliminary evaluation of working skills.
The Employment Contracts Act does not explicitly regulate the pre-evaluation of working skills (practical tests), but the Supreme Court in previous practice has considered the pre-evaluation of working skills as a pre-contractual negotiation stage prior to concluding an employment contract to be allowed while fulfilling certain requirements. The following observations should be taken into account when conducting the preliminary evaluation of working skills (practical tests):
- Practical tests aimed at identifying work skills must, as a general rule, be limited to mimicking a short-term work situation in the presence of the employer. Pre-contractual negotiations must not change in order to obtain unpaid employment from the worker and should be limited to the initial identification of the skills of the person who wants to work.
- While pre-evaluating the working skills, tasks should be limited to introducing the organisation of work without the applicant fulfilling actual tasks or orders.
- The employer should not receive any financial benefits from the practical tests.
- Provide the employee with written information or an explanation of the pre-employment skills evaluation that verifies their working skills, followed by the employer’s decision at a fixed time period whether or not to conclude an employment contract. If possible, the employer must also sign such a document – in order to avoid future disputes about whether the employee agreed to check their work skills.
The differences between the pre-evaluation of working skills and the start of work are abstractly described, which makes it extremely difficult to distinguish between them in practice. However, a distinction must be made between the pre-evaluation of working skills and actual working, which, according to the circumstances, can only be assumed to be performed for pay, because in the latter case the employment contract between the parties will in any case be considered concluded already with the organization on a trial day. In the Employment Contracts Act, there is a (rebuttable) presumption if a person does work for another person which, under the circumstances, can be expected to be done only for remuneration, it is presumed to be an employment contract. Since the employee is the weaker party in the employment relationship, in the event of a dispute, it is the employer who must prove the pre-evaluation of working skills between the parties instead of the employment relationship.
Presumably, therefore, it could be considered permissible, for example, to prepare a short article before starting work as a journalist, which will only be used to evaluate the skills of the person who wants to work. An analogue example can be given, for example, of compiling a program code or a document in the framework of a preliminary evaluation of working skills. On the other hand, it would go beyond the scope of the pre-evaluation of working skills for example fulfilling a few hours of customer orders before starting to work as a cook, or, as a tow truck worker and independently fulfilling the orders of customers with the employer’s car for several days.
However, due to the ambiguity of the legal situation concerning the trial day that even in the light of the abovementioned observations, it is not possible to rule out disputes as to whether a pre-evaluation of working skills can also be regarded as taking up employment under an employment contract.
If you have any further questions regarding the above, please contact us via e-mail at tallinn@leadell.com or by phone +372 619 1630.
Epp Lumiste/ LEADELL Pilv Advokaadibüroo attorney-at-law
Hendrik Rätsep/ LEADELL Pilv Advokaadibüroo lawyer
NB! This article does not discuss trial work performed through the employment mediation service of the Unemployment Insurance Fund, which is often referred to as a trial day.
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