Education and work

General education

The Chancellor has received many letters concerning problems in kindergartens and schools. Several questions recur from year to year. For example, questions are asked about school food or what rules are relied on when prohibiting smart devices at school.

During the reporting period, questions arose in connection with distance learning and other corona restrictions imposed in schools. A number of petitions did concern organisation of study in the conditions of combating the spread of the virus.

Distance learning

Distance learning − when a pupil communicates with teachers only online during instruction – is nothing unprecedented in itself. It can be seen as a different and enriching way of study, which also helps pupils to develop skills for independent work. While distance learning was applied on a small scale before the emergency situation in force in spring 2020 − for instance, project days were organised based on e-learning − then during the second wave of the corona outbreak distance learning lasted for a week or several weeks without interruption, and sometimes even for a month or two.

Despite the experience gained during the emergency situation, many questions this year concerned the lawfulness of applying distance learning and its quality. For instance, the Chancellor had to form an opinion whether distance learning lasting for weeks and months is in conformity with legislation (see e.g. distance learning at Jüri Upper Secondary School, distance learning at Oru School, distance learning at Tallinn Järveotsa Upper Secondary School).

The Chancellor explained to parents, schools and local authorities that, in order to apply distance learning, a relevant legal basis must have been established in school internal rules or the curriculum. If distance learning is applied to combat the spread of the coronavirus, then the measures taken to protect everyone at school, as well as the organisation of those measures, must be reflected in school internal rules.

Distance learning for protection of health cannot be imposed if no such measure is laid down in school internal rules. Nor, of course, can distance learning be applied if it has been laid down as a health protection measure in school internal rules but, in view of the actual situation, use of such a measure is not justified.

The legal basis for distance learning may also be laid down in the school curriculum. Regulating distance learning in the school curriculum would be especially useful in those cases where the school intends to apply e-learning as part of ordinary instruction. In the curriculum, the school can lay down the essential conditions and procedure for organising e-learning, which is carefully planned and discussed with everyone at school.

A legal basis should be understood as the right to act provided by a law or a regulation. Consequently, a school may not base its decision on legally non-binding guidelines or recommendations (see distance learning at Rahumäe Basic School). Recommendations are intended for practical organisation of distance learning. Orders given by the owner of a school − as a rule a local authority − can be seen as orders given in the frame of the school’s internal relations, compliance with which may be mandatory for the head of the school as a local authority employee. However, such orders cannot be applied directly in respect of persons outside the administration, i.e. pupils. For this, a decision by the school is needed, and the school, in turn, proceeds from a law or a regulation when adopting that decision.

In one case, the Chancellor had to assess whether the school was allowed to refer pupils to distance learning because there were not enough teachers at school (see “Distance learning at Järveküla School“). It was decided to apply distance learning not for protection of those staying in the school building but because a large number of teachers could not work in the school building due to national restrictions on movement. The Chancellor found that the law does not allow all pupils to be referred to distance learning for this reason. When making this decision, the school cannot rely on an emergency plan because under the Basic Schools and Upper Secondary Schools Act temporary absence of teachers from school cannot be interpreted as an emergency. Nor had the school declared an emergency under the Emergency Act.

In most cases, the Chancellor assessed the application of distance learning on the basis of a petition, but in one case she also initiated proceedings herself (see distance learning at schools in Jõgeva rural municipality). The Chancellor found that two-day (in one school three-day) distance learning immediately before the school holidays did not breach pupils’ rights.

Assessment of distance learning also revealed that it is unclear who is actually competent to decide on applying distance learning (see “Distance learning at Tabasalu Ühisgümnaasium“).

The Chancellor explained that, in order to combat an infectious disease, the law allows imposition only of those restrictions which are unavoidably necessary to prevent the spread of the infection. It is necessary to assess each restriction individually as well as the aggregate of all the restrictions simultaneously imposed. Prohibitions and orders must have a causal link to decrease of the infection in view of their anticipated effect.

Decisions on the risk arising due to the epidemic spread of the coronavirus are made by the Health Board relying on epidemiological, laboratory and clinical data. Depending on the situation, the Health Board or the Government of the Republic may impose measures laid down by law: for instance, temporarily closing a school or restricting freedom of movement in a school. However, neither the Health Board nor the Government can decide that a school should (partially) transfer to distance learning. The school itself must decide on the best educational organisational measure in the conditions of the spread of the virus. For example, if the Health Board temporarily closes a school, in principle the possibility of referring all or some pupils to distance learning may need to be considered.

There was also a case where the decision on transfer to distance learning was made by the owner of the school (see distance learning at Kuusalu Secondary School). The Chancellor explained to the owner of the school that making such a decision is not within the competence of the school owner, so that it was void. A decision to apply distance learning may be made by the school director if the possibility of distance learning is stipulated by school internal rules. Even if the owner of the school gives guidelines for action to a school as its establishment, ultimately the school (director) is responsible for the lawfulness of the decision to transfer to distance learning.

The Chancellor has been asked whether education was accessible during distance learning in the manner required by law. Legislation does not regulate what extent of instruction provided by a school may be made up of e-learning. It is also unclear how exactly e-learning must be carried out. Even during distance learning, schools must ensure that teachers provide sufficient guidance and instruction to pupils. This means that a subject is explained and pupils have an opportunity to ask the teacher for clarification when they do not understand the study material. A parent must not take a teacher’s place (see e.g. “Distance learning in schools in Tallinn“).

On several occasions, the Chancellor had to assess whether a school’s decision to refer a specific pupil to distance learning was lawful.

In one case, a school prohibited a child who had returned from a trip to Greece to take up studies at the school even though under the Government of the Republic Order in force at the relevant time people arriving from Greece did not have to self-isolate. The Chancellor explained to the school that a school may neither disregard the Government Order nor impose restrictions other than those established by the Government on people arriving from abroad. The Chancellor recommended that the school should allow the child to attend classes taking place in the school building.

In another case, a school referred the children of a family to distance learning although on the day when the family returned from abroad no restriction of movement was imposed in Estonia on travellers arriving from the country in question. Thus, there was no need for the children to self-isolate. The Chancellor found that no legal basis existed for referral of these pupils to distance learning and the school’s decision was based on mistaken circumstances. The school should have established the conditions for referral to distance learning beforehand in school internal rules or the curriculum. The school should also have first contacted the parents of the children and not started to ascertain the potential need for self-isolation through a child as intermediary.

The Chancellor also had to explain whether a(n) (upper secondary school) pupil is entitled to demand the possibility of distance learning if by doing so they wish to avoid infection of their family members with the coronavirus.

The Chancellor explained that studying in a school building is still the standard form of instruction for schools. Thus, a pupil must attend instruction taking place in a school building. However, a school should be understanding as to a pupil’s problem and try to resolve it. In the specific case, the school’s decision would have been correct in either case: both when allowing a pupil to use distance learning or when obliging them to attend instruction taking place in the school building.

Thus, a need has arisen to apply distance learning to combat the spread of the coronavirus (or some other virus in the future), but several schools also plan to increase the share of distance learning in so-called ordinary study. Instruction might no longer take place mostly in the school building.

In any case the quality of education must be guaranteed, no matter what form of instruction the school uses. For this, the Riigikogu must establish by law all the essential norms and set the limits within which a school and the owner of a school may operate. Under rule of law, no situation may arise where the public power acts without a legal basis even though that action may be motivated by the best intentions. That is, not every individual step necessarily amounts to a violation but in a combination of several factors high-quality education may become inaccessible. The limits for action by schools and school owners should be so precise and clear that pupils and parents understand what a school may and what it may not do.

Schools and school owners must be left sufficient autonomy for organising instruction. This means that too detailed regulation should be avoided. Nevertheless, the necessity to amend and supplement the law and the national curricula should be considered, so that nationwide understanding exists as to what e-learning is and under what rules it may be applied. Education must be uniformly accessible everywhere in Estonia, and the rights and duties of pupils and parents must be laid down comprehensibly and clearly.

In that light, the Chancellor sent her opinions on distance learning both to the Riigikogu Cultural Affairs Committee and the Ministry of Education and Research.

Preparatory course for state examination

The Association of Estonian Student Representative Bodies asked the Chancellor to assess whether, in provision of free preparatory courses for the state examination in mathematics, pupils are treated equally if those courses are only organised in Estonian.

The Chancellor found that the state has relatively broad freedom in deciding how to offer preparatory courses to pupils as long as equal opportunities for school leavers are provided in this. Pupils must receive support first and foremost from their school. A secondary school leaver must understand Estonian at least at proficiency level B2.1, which means that they should be able to follow the course in Estonian. Since this was a review course, it means the pupils already had to be familiar with the material beforehand. Thus, the state is not obliged to offer all school leavers preparatory courses in Russian as well.

Smart devices at school

The Chancellor was asked once again what rules a school relies on when it prohibits the use of smart devices during the school day. A parent asked whether a school may lay down in its internal rules that at the beginning of a lesson all children must place their mobile phones in a depository in the classroom and refusal to do so is interpreted as a violation of internal rules.

The Chancellor found that school internal rules which oblige all pupils to deposit their mobile phone before a lesson, and treat refusal to do so as violation of internal rules, are not compatible with the Basic Schools and Upper Secondary Schools Act. The law allows a school to request deposit of items (including smart devices) if a pupil uses them in violation of internal rules. However, preventively depositing the phones of all pupils is not compatible with the letter or the spirit of the law, nor is it fair in respect of those pupils who do not violate internal rules.

Since restriction on the use of smart devices is also a topical issue in other schools, the Chancellor’s adviser wrote an article on this for the teachers’ newspaper Õpetajete Leht.

Grouping of pupils in a physical education lesson

The Chancellor was asked whether a school may divide pupils into stronger and weaker groups in a physical education lesson and give different tasks to those groups.

The national curriculum allows differentiation of physical education learning tasks according to substance and level of difficulty. This enables taking into account pupils’ abilities and increasing their learning motivation. At the same time, the substance of learning and the results sought are uniform for all pupils (except pupils with special educational needs).

When organising instruction, a school must also proceed from the needs and interests of pupils and, where possible, take into account proposals by pupils and parents. Each child must be treated with respect, regardless of their abilities in one or another field of sport. No child may be disparaged or degraded. Learning tasks should be differentiated so as to increase a child’s motivation to study, and not reduce it.

School transport

Jõhvi rural municipality changed a bus route in the middle of the school year, so that a child from a neighbouring municipality attending the school was 10–15 minutes late for school every day. Although planning of bus routes cannot take into account the interests of all passengers, when introducing changes a local authority must nevertheless analyse their impact on families.

Where a local authority has given a child a place in a school based on the child’s residence, it is not required to organise transport of pupils to school in a neighbouring local authority and back. If a local authority does not ensure a place in a school, the rural municipality, town or city must organise a possibility for a pupil’s transport to and back from a school outside its boundaries or compensate the pupil’s transport expenses.

Narva City Government organised a pupil’s transport to school and back home on the basis of a schedule. In the event of a trip outside the schedule, the city government compensated expenses related to public transport tickets or use of a personal car. The Chancellor found that the local authority must also find a solution where a pupil must travel to school or from school back home outside the schedule, for instance due to illness, but they cannot use public transport and the parent does not have a car. Narva City Government agreed with the Chancellor’s assessment. In the future, in such a situation the inhabitants of Narva can apply, for example, for compensation of taxi expenses and social transport expenses.

School food

According to the law, school meals for pupils are organised by the local authority. Due to distance learning, some pupils were sometimes deprived of organised school food.

According to the Chancellor’s assessment, provision of meals to pupils under distance learning is a voluntary decision by local authorities, and certainly such support to pupils and their families deserves recognition. However, when providing that benefit, cities, towns and rural municipalities must ensure that the rules for providing meals to those studying outside the school are established by a municipal council. All pupils must be treated equally when providing school food. For example, it is difficult to justify why a local authority distributes food parcels to pupils under distance learning but not to pupils studying at home due to quarantine. However, pupils living further from the school may be deprived of school food because going to pick it up would take an unreasonably long time.

The Chancellor explained that cities, towns and rural municipalities must also organise an appropriate and varied school lunch for pupils needing different food for health reasons. If a local authority has decided to distribute a free school lunch to everyone, the greater expense related to special food must be borne by the local authority.

When setting the time of the meal break, schools must take into account the best interests of children and ascertain, assess and consider how best to organise meal breaks with a view to reasonable solutions.

Thermal cameras in school

Unlike the use of monitoring devices, the law does not regulate installation of thermal cameras in schools. In principle, a school is entitled to install and use a thermal camera but this must be previously regulated by internal school rules. A pupil can go to a school nurse and have them assess their health on the basis of the camera measurement results. If a pupil does not go to a school nurse or fails to observe the advice given by the nurse, then depending on circumstances the school, with the knowledge of a parent, may ask the pupil to leave the school building or ask a parent to pick up their child.

A thermal camera may be adjusted so that it also fulfils the function of a monitoring device. In that case, the school may use monitoring only to check entry and exit to the school building or school grounds and to prevent a situation endangering the safety of pupils and school staff. A dangerous situation must be resolved in accordance with the provisions of internal school rules. No parental consent is needed to monitor a child.

Kindergartens and childcare facilities

The epidemic spread of the coronavirus also affected the operation of kindergartens and the Chancellor received several petitions in this connection.

In one case, a kindergarten refused to let a child come to the kindergarten even though the child was not ill nor had been in close contact with staff who had fallen ill. The Chancellor considered it reasonable that a kindergarten advised not to bring children to the kindergarten if possible. Nevertheless, the kindergarten had no right to refuse to let a child into the kindergarten because the child had no symptoms of disease nor was the child required to self-isolate. The Chancellor recommended that the kindergarten should avoid such a mistake in the future. If the teachers of the child’s group could not go to work, the child should have been temporarily included in another group.

The Chancellor conceded that perhaps it would be reasonable to introduce a provision in the Preschool Childcare Institutions Act that would enable temporarily closing a kindergarten in exceptional cases. That decision can be made by the Riigikogu.

A petitioner wanted to know whether a kindergarten may ask a parent why they bring their child to a kindergarten where the Government of the Republic has strongly recommended that children should not be taken to a kindergarten or a childcare facility without absolute necessity. Another enquiry related to whether a kindergarten may ask about a child’s health if there is reason to believe that someone in the child’s immediate circle has become infected with the coronavirus.

The Chancellor explained that even though the Government has recommended that a child be taken into a kindergarten only in case of absolute necessity, doing so is not prohibited. This means that in such a situation a kindergarten may not refuse to let the child come to the kindergarten. A kindergarten is not competent to enquire about absolute necessity on the part of the parents, let alone make decisions on that basis.

The right to a kindergarten place

Many parents complained against local authorities who declined to give their child a place in a kindergarten.

Under the Preschool Childcare Institutions Act, a rural municipality, town or city must give a kindergarten place to each child at least 1.5 years old whose residence is within the boundaries of that rural municipality, town or city and coincides with the residence of at least one of the parents. The law does not require that a child must receive a place in a kindergarten of their parents’ choice, but a rural municipality, town or city must ensure a place in the kindergarten of its service district.

A rural municipality, town or city has complied with its duty if it gives a family a kindergarten place within a reasonable time. Merely placing a child in a queue for a kindergarten place is not sufficient. In case-law, as a rule, a reasonable time has been considered to be two months after applying for a kindergarten place.

Parents who contacted the Chancellor with concerns about a kindergarten place were given an explanation of how to protect their rights through the court. According to case-law, reference to rapid population growth, lack of money or other similar justifications do not relieve a local authority of the duty to ensure a kindergarten place. The court has stated that if a family is not given a kindergarten place in time and the family has incurred additional expenses for this reason (e.g. a higher fee in a private kindergarten in comparison to the municipal kindergarten, or a fee for childcare), the local authority must compensate those expenses to the family.

The Chancellor explained to parents that a rural municipality, town or city may replace a kindergarten place with a place in childcare only with parental consent. The activities of a rural municipality, town or city are not lawful if a parent is forced to find a place in childcare for their child because the local authority fails to ensure a kindergarten place to a family by breaching the law.

Many questions about the duty of ensuring a kindergarten place were received from Saue rural municipality, so that the Chancellor checked the regulations concerning kindergartens in that municipality. The Chancellor found that a provision in Saue Rural Municipal Government regulation on “The procedure for admission to and exclusion from preschool childcare institutions in Saue rural municipality, and the period of operation of a childcare institution“, which links a child’s right to use a kindergarten place to reaching three years of age, contravenes the law and the Constitution since, in the case of the parents’ wish, a kindergarten place must be given to a child who is at least 1.5 years old. The regulation also lacked a procedure for applying for a kindergarten place for a child aged 1.5–3 years. The Chancellor asked that Saue Rural Municipal Government should bring the provisions of the regulation into line with the law and the Constitution. The rural municipal government said that it was prepared to amend the regulation.

The Chancellor also examined the procedure for ensuring a kindergarten place in Saku rural municipality. The basis for this was a complaint by a parent saying that Saku rural municipality had failed to give their child a place in a municipal kindergarten for the requested period. Because of this, the parent sought a place in childcare for their child. The Chancellor found that it is not lawful that a kindergarten place is first of all ensured to children aged 2–7 years. The law allows offering a place in childcare for a child aged 1.5–3 years, but if the parent does not consent to this a kindergarten place must be given to the child. Therefore, the Chancellor proposed to Saku Rural Municipal Government that such a violation should be avoided in the future and a kindergarten place should be given to all the children who are entitled to it by law.

The Chancellor proposed to Saku Rural Municipal Government that some provisions of the regulation on “The procedure for provision of social welfare assistance“ should be brought into line with the law and the Constitution. The Chancellor found unconstitutionality in the provision of the regulation under which the childcare service of a child aged 1.5–3 years is partially financed from the budget of Saku rural municipality if a parent has applied for a kindergarten place at a kindergarten in Saku rural municipality but, due to the absence of a place, agrees to childcare service. Apart from this, the Chancellor saw a problem in a provision under which the highest rate of that compensation is approved by the rural municipal government. The maximum rate of compensation or the criteria for paying compensation should be approved by the municipal council. Saku Rural Municipal Council amended the regulation in line with the Chancellor’s proposal.

On several occasions, the concern of a person contacting the Chancellor was resolved in the course of proceedings. For example, in one case it was found that the local authority was able to offer a suitable kindergarten place to the family so that their child could start going to a kindergarten. The misunderstanding was caused by the complexity of the system of the queue for a kindergarten place and granting a kindergarten place. In another case, the kindergarten annulled the decision by which a child had been excluded from the kindergarten. The local authority also brought the provisions of its regulation concerning exclusion from a kindergarten into line with the law. Namely, the Preschool Childcare Institutions Act stipulates that a child may be excluded from a kindergarten only if the child goes to school, or on the basis of an application by a parent.

No other bases are stipulated by law, and a local authority may also not establish any such bases.

Suitability of a kindergarten place

In some cases, parents contacting the Chancellor saw a problem in the unsuitability of a kindergarten place offered by a rural municipality, town or city. If a local authority offers a kindergarten place, it must be accessible to the family in terms of its location, so that the family would be able to use the place in reality. In rapidly developing residential areas, the problem may be acute, so that in those places a local authority must find flexible solutions to increase the number of kindergarten places.

For instance, the Chancellor assessed the distribution of kindergarten places in Harku rural municipality. The Chancellor found the activities of Harku rural municipality to be lawful in this case. The law requires that distributing kindergarten places should also involve taking into account, if possible, whether children of the same family already attend that kindergarten. Harku rural municipality had done so. The Chancellor explained that although the law does not require that a kindergarten place should be given as close to a family’s residence as possible, the needs of a particular family must be taken into account when offering a place. For example, it cannot be considered lawful if a rural municipality, town or city offers a family a place in a kindergarten but reaching it takes unreasonably long and/or is too expensive.

The availability of a kindergarten place was also dealt with in a recommendation which the Chancellor sent to Häädemeeste rural municipality in connection with closing down the building of Kabli Kindergarten.

Kindergarten and school boards of trustees

The Chancellor was repeatedly asked to what extent a local authority or a director must take into account the opinion of school and kindergarten boards of trustees.

When assessing the facts of several complaints, the Chancellor found that the rights of a board of trustees had not been violated. For instance, a local authority may decide who and how establishes the conditions for waiving a meal. Thus, it may be considered justified that Tartu city wishes to regulate waiving a meal on a uniform basis in all the city’s childcare institutions. A kindergarten board of trustees may propose to the city government to change the conditions, but this does not mean that changing the conditions lies within the competence of the board of trustees and that the city government must agree with proposals by the board of trustees.

No matter whether a decision concerns educational reform, reorganisation of schools, adoption of statutes of an establishment, transfer of instruction to another building, or reorganisation of the work of kindergarten teachers – that decision must be made by a local authority or school director. In any case, a local authority must fulfil the functions arising from law, for instance ensuring that education meets the national curriculum, that the learning environment is safe and that pupils in need of support do receive that support. A board of trustees cannot assume responsibility for fulfilling the functions of a local authority, kindergarten or school. Many decisions have a monetary dimension, i.e. the choices must be made by the local authority.

Hobby education

The Chancellor was contacted by a parent with a concern that their child living in Toila rural municipality wanted to take up studies at Jõhvi music school but Toila rural municipality did not agree to cover the music school tuition costs. The municipality justified its refusal by asserting that the parent had been late in applying. At the same time, people had not been informed by what deadline they had to notify the municipal government of their wish.

The Chancellor found that support for hobby education by rural municipalities, towns and cities deserved recognition. However, a municipal council should establish rules for supporting hobby education, so that the inhabitants know who can receive support and on what conditions, and that distribution of public benefit is transparent.

Once again, problems for a child and their family were caused by the wish of the child’s former football club to receive a thousand euros transfer fee from the new club. The problem of the specific family was resolved temporarily: the child was registered as a player for the new club for one year without the club having to pay the transfer fee claimed.

A few years ago, the Chancellor analysed the problems related to change of sports clubs and sent recommendations for proper dealings to sports clubs and federations. The majority of sports clubs are legal persons in private law, so that the Chancellor cannot intervene in their disputes. If necessary, these disputes are resolved in court.

The Chancellor was also asked to assess whether a school may restrict a pupil’s participation in a camp. A school allowed a third-year pupil to participate in a language immersion camp organised by the school only together with a support person. The condition of a support person was imposed immediately before the camp was to take place. Prior to this, the school had advised the family that they should abandon the wish to attend the camp. According to the information available to the Chancellor, the school did not offer any adjustments to the child for participation in the camp, and justified its decision by the fact that the child was in need of special support during studies. In doing so, the school violated the child’s rights both while preparing the camp and when deciding on the child’s participation.

Organising a camp presumes offering equal opportunities. That is, a camp must be organised for as many children as possible; in case of necessity an individual approach must be considered and if the parent so requests then also reasonable adjustments. The child is also entitled to express their opinion as to what should be done so as to enable them to attend the camp. However, if the school still finds that the school’s own adjustments would be too burdensome or would compromise the well-being of other children, the justifications by the school must be based on objective criteria. Since the school is responsible for the well-being of all the children in a camp, in that case it is entitled to refuse to allow a child to attend the camp.

Vocational education

To a question about protection of the rights of apprentices, the Chancellor replied that the rights of an apprentice can be protected in cooperation between apprentice, school and company, including through the conditions of apprenticeship written into the apprenticeship contract. In defining working and rest time, the parties must proceed from the nature and purpose of the contract and the principles of good faith and reasonableness. Apprenticeship during studies is regulated by the Occupational Health and Safety Act, which also sets out the physical and psycho-social risk factors.

Apprenticeship may be compared to working but the apprenticeship contract does not regulate an employment relationship. Apprenticeship is temporary by nature and no remuneration needs to be paid for an apprentice’s work unless otherwise agreed. At the end of the apprenticeship contract, the student is not left without social guarantees or means of subsistence. The student is still guaranteed health insurance and termination of the apprenticeship contract does not lead to a student becoming unemployed.

Another issue concerning vocational education was whether a school is entitled to organise instruction in the school building during the corona pandemic. The aim of Rakvere Vocational School was to help students achieve the learning outcomes prescribed by the curriculum and graduate from the school. Instruction in the school building was also allowed during the spread of the coronavirus if a student was in need of educational support services or consultations or participated in practical study, sat for examinations or tests. The school was entitled to decide which students were in need of assistance on-site at the school.

Higher education

University admission conditions

Universities may determine their own admission conditions but these must be justified and comparable. Tallinn University of Technology and the University of Tartu in their admission conditions have equated the results of the state examinations in Estonian and Estonian as a second language as well as the Estonian proficiency examination. A university may do this if candidates are treated equally. The results of both state examinations help to assess the skills and knowledge (academic aptitude) of candidates but it should be kept in mind that different requirements have been set for those taking the state examination in Estonian than those taking the state examination in Estonian as a second language.

According to the Chancellor’s assessment, Tallinn University of Technology did not treat the candidates unequally because everyone crossing the threshold could take up studies at the university. The knowledge and skills of students are not compared with each other. Since the University of Tartu prepares a ranking of candidates, the risk of unequal treatment of candidates exists. On that basis, the Chancellor recommended that the University of Tartu should analyse its admission conditions from the aspect of equal treatment and, if necessary, amend the conditions.

The right to a need-based study allowance

When granting a need-based study allowance, an adult child continuing studies at the upper secondary school is not taken into account as a family member. The Riigikogu is entitled to decide on what conditions the need-based study allowance is paid. Thus, it is not unconstitutional that in granting the allowance only the minor children of a studying parent are counted among their family members.

Nevertheless, the Chancellor considered it incomprehensible why, in granting a study allowance, a student up to 24 years old is deemed to be a member of their parents’ family while at the same time a student parent’s own adult child attending upper secondary school is not deemed a member of the student’s family. The Ministry of Education and Research agreed that differently defining a family member in law is not logical and agreed to make a proposal to amend the law.

Use of a software application in studies

Some universities use the software application Proctorio that can be used to invigilate examinations taking place outside the classroom. Justification given for use of this software is the need to ascertain academic cheating during distance learning.

This constitutes aggressive interference with a person’s privacy since the software also enables monitoring a person’s behaviour and what takes place in their computer during the examination. Such aggressive interference might not be acceptable to all students. At the University of Tartu and Tallinn University of Technology, use of the software application is only possible with student consent. If a student does not wish or cannot use the application, the university must enable them to take the examination differently, for example in an auditorium.

Qualification and profession

Issues still arise in connection with compliance with the qualification requirements for teachers. For instance, a teacher working at a school asked for an assessment whether the Ministry of Education and Research had grounds to ask them to acquire a teacher’s professional qualification even though the Estonian Teachers Association as the body awarding the professional qualification was of the opinion that the petitioner’s qualification met the established requirements.

The Chancellor’s inquiry affirmed that in the opinion of both the body awarding the professional qualification and specialists of the Ministry of Education and Research the petitioner held the required qualification. Therefore, the Chancellor asked that the Ministry should also send its opinion to the teacher’s current employer and resolve the precept issued to the school.

Since there was a lot of confusion, the Chancellor recommended that the Ministry, in cooperation with the Estonian Teachers Association, should create a clear and unequivocal regulation for assessing teachers’ professional qualifications. When reading legislation, it must be possible to understand whether and what requirements an employee must meet in order to obtain the necessary qualification.

By a legislative amendment in 2014, the occupation of veterinary technician was removed from the Veterinary Activities Organisation Act. The Chancellor was asked to enquire whether it would be possible to restore the profession that once existed.

The Chancellor explained that she has no basis to request that the Riigikogu should restore the occupation of veterinary technician or medical assistant (velsker) in the law. The requirements for a specialist’s education and activities have changed over time.

The Riigikogu has decided that specialist work mentioned in laws may be undertaken independently and on one’s own responsibility only by a veterinarian with education (academic higher education) meeting the specific requirements. According to the Chancellor’s assessment, this requirement cannot be considered arbitrary or excessive. Alongside a veterinarian and under their supervision, a veterinary specialist with a different level of education may operate whose occupational title may also be a veterinary technician even nowadays.

In connection with professional qualifications, during the reporting year the Chancellor submitted an opinion in two constitutional review cases pending in the Supreme Court.

In one case, an individual applied for the professional qualification of Diploma Civil Engineer in Road Engineering, Level 7, on the basis of a special case (re-certification) in the sub-speciality of road building and road maintenance in the line of construction management and construction activities. The Chancellor had to reply to the Supreme Court whether partial failure to issue a legislative act of general application mentioned in § 24(4) of the Building Code was compatible with the Constitution.

The Chancellor found that failure to lay down more precise professional qualification requirements corresponding to the areas of activity set out in the regulation contravenes the delegating norm granted by § 24(4) of the Building Code and thus also contravenes the Constitution. The Supreme Court en banc indeed declared unconstitutional the failure to lay down by ministerial regulation the qualification requirements mentioned in § 24(4) of the Building Code.

In another case, the Supreme Court asked for the Chancellor’s opinion as to whether § 20(1¹) of the Child Protection Act was constitutional to the extent that the relevant provision with reference to § 202 of the former Criminal Code precludes awarding a trainer’s professional qualification to a person who has been punished for inducing a minor to engage in crime, regardless of the circumstances of the criminal offence.

The Chancellor found that § 20(1¹) of the Child Protection Act cannot be a basis for refusal to award the professional qualification of trainer nor for revocation of a trainer’s qualification. Consequently, § 20(1¹) of the Child Protection Act is not a relevant norm within the meaning of the Constitutional Review Court Procedure Act whose constitutionality could be checked in the court case in question.

Similarly to the Chancellor, the Supreme Court found that § 20(1¹) of the Child Protection Act was not relevant for adjudicating the administrative case and the application by the administrative court for review of the constitutionality of that provision was not admissible. The Supreme Court declined to examine the application.

Work

The Chancellor was asked to analyse whether the duty to pay employees sickness benefit, imposed on employers by § 12² of the Occupational Health and Safety Act in 2009, was compatible with the constitutional principles of freedom of enterprise and the fundamental right to property (§§ 31 and 32 Constitution) and the fundamental right to equality (§ 12).

The Chancellor found that the Constitution does not prohibit imposing a duty on employers to compensate sickness days. The state may also design a scheme for compensation of temporary incapacity for work so that the employer participates in it. Organisation of the health insurance system is a social policy issue in the case of which the broad margin of appreciation enjoyed by the Riigikogu should be taken into account. Related to this is the issue of how to preserve the income of a person who has been required to quarantine as a close contact. During the debates in the Riigikogu it was found that some employers had not paid sickness benefit to employees who had been required to stay in quarantine as a close contact, because, in their opinion, the Occupational Health and Safety Act did not impose such a duty. The Chancellor asked that the Riigikogu should clearly express in the law its will regarding payment of sickness benefit during quarantine. The Riigikogu clarified the law.

Concerns were expressed about teachers’ working conditions. A teacher noted that distance learning endangers teachers’ health because during video classes it was constantly necessary to use a computer. After video classes a teacher begins to prepare for the next day’s classes. The petitioner found that the health of teachers also needs protection alongside the well-being of pupils.

The Chancellor explained that an employer must protect an employee’s health both during distance learning as well as ordinary instruction. However, whether and what school management should do more specifically to protect the health of a teacher can only be determined on the basis of the circumstances of each individual case. The Chancellor also sent this opinion to the Labour Inspectorate, the Ministry of Social Affairs and the Ministry of Education and Research because large-scale application of distance learning even after the pandemic may lead to the need for a wider discussion of teachers’ working conditions and problems of occupational health.

Teachers’ working conditions were also raised in a petition asking the Chancellor to assess the decision of Viljandi Rural Municipal Government which allowed granting a longer vacation (56 calendar days) to a kindergarten teacher holding a master’s degree than a teacher without a master’s degree.

The Chancellor explained to the petitioner that the municipality was entitled to make that decision. The municipality justified it by the argument that granting a longer vacation to a kindergarten teacher holding a master’s degree in pre-school education helps to ensure that the municipality has enough kindergarten teachers with a master’s degree in pre-school education.

The Chancellor found that this can be considered a reasonable and relevant justification for different treatment.

During the reporting year, the issue of social protection of members of company management boards arose once again. The Chancellor was asked whether, under the Constitution, a company management board member having done salaried work is entitled to register themselves as unemployed and receive unemployment allowance.

The Chancellor explained that, under the Labour Market Services and Benefits Act, a company management board member who is a salaried employee is entitled to unemployment insurance benefit but not entitled to unemployment allowance.

The Chancellor conceded that it is difficult to find a justification why, in the event of discontinuation of work-related income, the status of a company management board member restricts the right to unemployment allowance. However, it cannot be said that the restriction is completely unconstitutional. Since salaried employees are guaranteed unemployment insurance benefit in the event of discontinuation of work-related income, the issue concerns more broadly social protection of people without work-related income. The conditions on which social protection measures should be implemented is for the Riigikogu to decide. It is important that people should be ensured assistance in the event of deprivation. Subsistence benefit is intended for this purpose. The Chancellor has also previously drawn the attention of the Riigikogu and the Minister of Health and Labour to the fact that the nature of work and the situation of the labour market has changed, so that unemployment insurance needs more flexible solutions.

The Chancellor also found that the norms concerning payment of sickness allowance could be more flexible. Account should be taken of the fact that nowadays there are jobs which an employee can do part-time or continue working at another place of employment even when they are ill.

Also related to work is payment of carer’s allowance. The Chancellor was contacted by several parents with the concern that the local authority did not pay them a disabled child carer’s allowance because their child was not yet three years old.

By relying on random examination of local authority legislation, the Chancellor noted that a large number of local authorities had imposed a restriction that no carer’s allowance is paid to the carer of a child under three years old. The reason given for imposing the age limit is that parents of a child under three years old receive childcare allowance. However, childcare allowance is no longer paid under the current law.

The Chancellor sent a circular to local authorities asking them to revise the underlying legislation for payment of social benefits and, if necessary, amend the legislation so that parents of children with disabilities are not deprived of the necessary social protection.

The Chancellor was contacted with a concern that a trustee in bankruptcy refused to compensate pecuniary loss incurred in an occupational accident occurring through the fault of an employer. The Chancellor explained that a trustee in bankruptcy has no legal basis to refuse a claim for compensation of health damage even if the person may in the future become entitled to obtain compensation for health damage through the Social Insurance Board.

The Social Insurance Board pays compensation for health damage only after the company liquidation process is complete and the company has been deleted from the commercial register. The Chancellor found that the practice of the Social Insurance Board is justified and compatible with the aim of taking over the duty of compensation of damage when the originally obligated person no longer exists.