Conscript and reservist
- An employee has the right to refuse to perform work if the employee is in compulsory military service, alternative service or in reserve training.
- An employer may not cancel an employment contract on the grounds that the employee is in military service, alternative service or reserve service.
- Expiry of claim for annual leave is suspended when the employee is undertaking military service or alternative service.
Employment relationship during military service
The Employment Contracts Act does not stipulate the format or term for notifying an employer about commencing military service. Considering the principle of good faith applied to employment relationships and taking into account the interests of the other party, an employee shall provide the employer with important information as soon as possible. Therefore, if commencing military service becomes certain, the employer should be notified.
Many employers have stipulated the principles of notification of an employee’s commencement of military service and return to employment in the organisation of work rules.
In order to avoid later disputes, it is advisable to give notice in a format which can be reproduced in writing, for example by e-mail or by submitting a relevant written application. When submitting a written application, make sure that it is also registered with the employer, if you send an e-mail, keep a copy for yourself just in case.
Pursuant to clause 92 (1) 6) of the Employment Contracts Act, an employer may not cancel an employment contract on the ground that the employee is in military service, alternative service or reserve service.
However, cancellation of an employment contract on other grounds is not prohibited.
An employer shall always have a legal basis for cancelling an employment contract, i.e. an employment contract can only be cancelled on the bases permitted by law. Pursuant to the Employment Contracts Act, an employer may cancel an employment contract extraordinarily either on the basis of section 88 of the Employment Contracts Act for a reason arising from the employee or on the basis of section 89 of the Employment Contracts Act due to the employer’s economic situation, i.e. due to lay-off.
If the position of an employee is abolished while he or she is in military service, the employer has the right to extraordinary cancel the employment contract. An employment contract may be cancelled by a declaration of cancellation made in a format which can be reproduced in writing. This means that the employer can send an e-mail or SMS to the employee regarding the cancellation of the employment contract, but the employer shall also give reasons for the extraordinary cancellation of the employment contract.
An employment contract can always be cancelled by agreement between the parties but both parties to the employment relationship shall express their will clearly and unambiguously to do so. It should be the actual wish of both parties.
Should the employee, if they so wish, write a letter of resignation, and can this be done during military service, or should they wait until the end of the military service and then continue working for the employer for another 30 days?
Despite the fact that an employment relationship is suspended during conscription, the employee is still in a valid employment relationship until one of the parties terminates the employment relationship or the parties terminate the employment relationship by agreement.
An employee may ordinarily cancel an employment contract entered into for an unspecified term at any time (subsection 85 (1) of the Employment Contracts Act) by notifying the employer thereof at least 30 calendar days in advance (subsection 98 (1) of the Employment Contracts Act). Being in military service does not prevent an employee from submitting a declaration of cancellation, so an employee can submit the declaration during military service. It is important that the employee complies with the term for advance notice (30 calendar days).
Any right of an employee provided by law always corresponds to an obligation of the employer. As an employee has the right to refuse to perform work, in particular if the employee is in compulsory military service or alternative service or is participating in reserve training pursuant to clause 19 5) of the Employment Contracts Act, an employer cannot request or ask for work during such time.
During military service, a person is in the service of the Defence Forces, i.e. performing a national defence obligation that does not allow him or her to continue his or her employment at the same time. However, it is possible to work during military service leave. In this case, the employer shall terminate the suspension of employment in the register for the period for which the employee returns to work. The employer shall confirm the suspension of employment contract again in the register no later than at the end of the employee’s leave.
An employment relationship lasts until cancellation of the employment contract and that includes time in compulsory military service. This is important when calculating the notice periods for cancellation of employment.
For example, if an employee commenced work for an employer in January 2014, was in military service in 2017 and the employer wants to lay him or her off in 2019, the employer shall take into account that the employment relationship has lasted 5 years and thus the employee shall be notified of extraordinary cancellation at least 60 calendar days in advance.
An employment contract entered into for a specified term expires upon the expiry of the term. If the term of the employment contract arrives while the employee is in compulsory military service, the employment contract expires and the employee cannot demand work from the employer when he or she returns from compulsory military service.
The employer does not have to notify the employee of the expiry of the term of the employment contract. However, the employer shall issue a certificate to the employee for the Unemployment Insurance Fund, should the employee wish to register as unemployed after the end of compulsory military service.
The duration of a contract for services concluded for the performance of a specific order depends on the term of performing the contract agreed in the contract. A contract for services can also not be performed during compulsory military service. If the term of this contract arrives while the person is in compulsory military service, the person shall not keep performing the contract after returning from compulsory military service. But if the term for performance of the contract continues, the contract shall be performed upon returning from compulsory military service.
The law does not provide for such a possibility.
You only have the right to refuse work while in compulsory military service, so as soon as possible after the end of military service.
An employer cannot refuse to suspend an employment contract. After an employee has informed the employer by e-mail or hand-written application that he or she must take up compulsory military service, he or she exercises the right to refuse to work, i.e. he or she will no longer go to work but military service.
An employer cannot request a so-called letter of resignation, i.e. an application for ordinary cancellation of an employment contract. Ordinary cancellation of an employment contract may only be based on the employee’s free will, i.e. the employee shall wish to cancel the employment contract. If this is not really the employee’s wish, he or she shall not write a letter of resignation.
An employer can refuse to perform an employment contract only if the employment contract has expired. However, as has already been stated, there must be a legal basis for cancelling an employment contract. Until an employee has received an application for extraordinary cancellation of the employment contract, he or she has the right to demand performance of the employment contract and that he or she is allowed to work.
In any case, the employee should request an oral and written explanation from the employer as to why he or she is not allowed to work and clearly express his or her will to continue work by going to his or her current workplace by the beginning of the working day or turning to the legal representative of the employer. If the employer announces to the employee orally over the phone or when the employer sees him or her that the employee is no longer needed and he or she should not come to work, the employee should not be distressed by it. An e-mail or registered mail should be sent to the employer to receive an explanation. The employee should have proof that he or she did everything in his or her power to express his or her wish to continue working for the employer.
Participation in reserve training
An employee has the right to refuse to perform work if they are participating in reserve training. The employer is not obliged to pay the employee wages for the time spent at the reserve training.
The law does not specify in what form or within what deadline the employee must notify the employer about going to a reserve training. Considering the principle of good faith and taking the other party’s interests into account in an employment relationship, the employee must provide important information to the employer at the first opportunity. Therefore, if participation is certain, the employee should inform the employer.
Many employers have set out notification principles for entering and returning from service in internal work rules. In practice, it is advisable for the employer to establish clear internal procedures: how the employee notifies the employer about leaving for and returning from the reserve training, who takes over the employee’s tasks, how replacement is arranged, and which documents the employer expects from the employee. This can be challenging in small companies or in roles where the employee has unique competence or access to key systems.
The most reasonable approach is to make a short handover plan before leaving: which tasks remain unfinished, what the deadlines are, who will substitute, where files and access credentials are located, and which clients or partners need to be informed. From the employer’s perspective, such a plan could be standardised so that it does not depend on an individual manager’s or employee’s personal habits. From the employee’s perspective, it is helpful if important work processes, contacts, and access details are documented even before a call-up arrives. This reduces stress on both sides.
The employer is not obliged to pay wages for the time spent at the reserve training. While the employee is at the reserve training, they are paid an allowance in accordance with the established procedure. In other words, the state pays the employee an allowance during the reserve training.
At the same time, the employer may voluntarily provide additional support, for example by partially or fully maintaining the employee’s usual income or by covering the difference between the allowance and the salary. This is the employer’s choice, not an obligation.
An employer may not terminate an employment contract on the grounds that the employee is participating in reserve training. At the same time, the employee has a legal right to refuse to work due to participation in the reserve training.
There is no need to suspend employment in the Employment Register if the employee is participating in reserve training.