Our colleagues Annika Vait and Kristena Paalmäe wrote an article about pre-employment negotiations.

In practice, there are often situations where, when applying for employment, the employer wishes to examine the skills and suitability for work of the applicant before entering into an employment contract.

In a recent resolution, the Supreme Court of Estonia explained that if at the time of pre-employment negotiations a person applying for work has started to perform independently the functions normally performed during the employment relationship, it must be assumed that the negotiations had terminated – that the parties had entered into an employment contract.

The Supreme Court explained in 06.12.2021 decision no 2-20-5843 that parties may hold pre-contractual negotiations until the conclusion of employment contract. During pre-contractual negotiations, the employer may also examine the professional skills of the person wishing to work through practical tests or tests, but only in a short term. The Supreme Court explained it is not acceptable if an applicant performs work as pre-negotiations or trying the work, from which the employer would benefit financially, especially if the person wishing to work performed his or her duties independently without employer’s presence.

The pre-contractual negotiations should therefore be limited only to the initial identification of the applicant’s skills. This means that the employer may not examine the person’s work skills in a way that the person provides independent free work to the employer.

According to the current case-law of the Supreme Court, in case of a dispute the employer has a higher burden of proof than the applicant for employment. The employer is able to refute the assumption of the contract (to claim that pre-contract negotiations were still ongoing and therefore the contract had not yet been concluded), but to do so, the employer should prove, for example, that the person wishing to work merely familiarized himself/herself with the organisation of work and did not perform the actual duties. The employer may also prove that the applicant agreed to check his or her working skills, and the employer clearly explained to him/her how long the pre-assessment of his or her working skills would last and when the employer will announce the conclusion or non-conclusion of an employment contract with him or her. Otherwise, in the case of independent working it should be assumed that the pre-contractual negotiations between the parties had ended and the contract of employment had been concluded.