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A new amendment to the Employment Contracts Act entered into force on 24 December this year, introducing the concept of an autonomous employee. Estonian employers’ associations and trade unions representing the workers’ interests had been negotiating this amendment for nearly five years, as it proved difficult to find the right balance between flexibility, safety, and security.
However, this is not an unprecedented regulation in Europe – similar forms of employment are also used in countries such as Finland and Denmark.
Who is an autonomous employee?
Whereas an employee is normally expected to be at the workplace and to work at fixed hours, an autonomous employee, by the nature of their work, is completely free to organise their working time according to their wishes and needs.
For example, whereas an employee is traditionally expected to work between 9 am and 5 pm on working days, an autonomous employee is not expected to work at a fixed time but may choose to carry out their tasks at any time that suits them. Such an employee may decide to work first thing in the morning (for example, from 7 am to 10 am) and then late at night (from 5 pm to 10 pm), or to spread the workload unevenly over different days.
Complete freedom means that an employer cannot impose on an autonomous employee an obligation to always be available for work or meetings at certain times.
No working time restrictions for the most part
To give effect to the new way of working, it was necessary to loosen certain mandatory protections given to employees by law.
In contrast to traditional employment, the law provides that such employment is not subject to any regulation on the organisation of working time, restrictions on night work and daily and weekly rest time, or higher rates of pay during night work and public holidays. In other words, an autonomous employee cannot claim from his employer two times the wages for working during the Christmas holidays.
However, as a limitation, the overall limitation on working time applies – an autonomous employee may not work more than 48 hours in any seven-day period in any one month.
Also, such work must not harm the employee’s health or endanger them, meaning that the employer must continue to ensure that the requirements of the Occupational Health and Safety Act are met. In this way, the employer must also ensure that the autonomous employee’s health or life is not endangered by factors of the working environment and must design and furnish the workplace in such a way that accidents at work and damage to health can be avoided and the employee’s fitness for work and well-being maintained.
Thus, it is up to the employer to decide whether to support the creation of a home office workplace for such an employee by paying additional benefits (for example, in the case of teleworking, to support the purchase of a monitor, an ergonomic keyboard and a suitable chair), or to provide the autonomous employee with a suitable workplace in the office. In the latter case, the workstation should then be accessible and available to use in a normal way to the autonomous employee, even at non-standard times (e.g., at night).
At least for managers, lawyers, etc., earning average wages
The amendment, therefore, allows employers to employ autonomous employees who do not risk breaching working time and rest time requirements.
Potentially, autonomous employees could come from a wide range of fields and professions, such as managers, lawyers, communication and marketing specialists, human resources staff, etc. Unlike in other countries, Estonian law does not prescribe a specific list of positions but allows employees and employers to assess and use the possibilities themselves.
However, to protect the more vulnerable employees, it is stipulated that an autonomous employee must receive at least the average gross monthly wage in Estonia, based on the figures of the quarter preceding the conclusion of the agreement, and the employee must not be a minor.
Full discretion on the number and timing of working hours
An employee without full discretion over the number and timing of their working hours cannot be considered substantially autonomous. For example, suppose the employer nevertheless expects the employee to be available at all times to carry out their duties at certain times of the day (e.g., from 9 am to 5 pm). In that case, the employee is not an autonomous employee. However, this does not mean that the parties cannot agree on a case-by-case basis that the employee will attend certain meetings or that deadlines cannot be set for the employee to perform their duties.
The law stipulates that such an employee is subject to a one-month reference period for the calculation of working time. It would probably be more practical to reflect in employment contracts not the daily or weekly but the monthly workload of such an employee according to the number of calendar working days (e.g., 22 working days x 8 = 176 hours per month in November).
Written agreement required
An employer cannot unilaterally designate a particular employee as autonomous; a written (i.e., signed) agreement between the parties is required. However, even when such an agreement is concluded, it must be considered that if the employee does not have full autonomy based on the agreement’s contents, it is a legally void agreement, i.e., one without consequences.
Termination of the autonomy agreement
Suppose one of the parties finds that autonomous decision-making is still unsuitable for a particular employee. In that case, either party may terminate the agreement, irrespective of the reason, by giving 14 calendar days advance notice.
The question of whether and in what cases a breach of the autonomy agreement by the employee or the employer can also be considered a material breach of the employment contract, which would give rise to extraordinary termination of the employment contract, e.g., by the employee (if the employer still consistently requires working at certain times), is answered by the case law of labour dispute committees and courts.
Next steps
In light of the new law, employers could consider implementing autonomous working from the following angle:
1) Are there any employees in the company whose nature of work or personal circumstances would require them to be completely free to choose their working hours?
2) As an employer, can I afford employees complete freedom to choose their working hours, including not requiring a willingness to perform work tasks at any particular time?
3) Would the implementation of autonomous working save up on any resources?
If the answer to all three questions is yes, then the parties should consider agreeing on autonomous working, as this could improve both working conditions and the efficiency of the work.
If you would like us to review your rules of work organisation, advise you on how to act in the light of legislative changes, and prepare the necessary notification documents, our lawyer Andres Kivi is at your service.
