Equal treatment

Under the Estonian Constitution, everyone is equal before the law. No one may be discriminated against – a poorer attitude demonstrated towards them, or excluding them – on the basis of ethnicity, race, colour, sex, language, origin, religion, political or other views, property or social status, or on other grounds.

Under the Chancellor of Justice Act, the Chancellor carries out checks over conformity of legislation with the Constitution and laws as well as over the activities of representatives of public authority. The Chancellor also carries out conciliation proceedings where persons in private law are in dispute about discrimination.

A total of 38 complaints about possible discrimination were submitted to the Chancellor of Justice during the reporting year. These included petitions concerning age and gender discrimination, but also complaints of exclusion on the basis of disability, ethnicity, language or race. One person found that they had been discriminated against because of fulfilling family responsibilities, a couple of people described discrimination because of belonging to the LGBTI+ community. As a rule, the Chancellor offered explanations in these cases; on one occasion she proposed to the Government of the Republic to amend a regulation in order to stop discrimination. One petition was settled through conciliation proceedings.

Social rights

The amount of daily in-patient fee 

The Chancellor of Justice was contacted by a parent who had to pay a fairly high (caregiver’s) in-patient fee so that they could stay in the hospital with the child to whom they wanted to offer essential support during treatment. In view of the child’s situation, the parent considered that asking for such a fee was unfair to them and the child and failed to take into account the child’s needs. 

During a child’s hospital treatment, part of the child’s health service benefit also includes the in-patient fee for accommodation for the child’s caregiver (parent or other trusted next of kin). The amount of the fee has been established by the Government of the Republic in its regulation on “The list of health services of the Health Insurance Fund”. 

The established procedure is based on the assumption that children acquire the necessary skills at the latest at the age specified in the regulation (by the age of 8 during rehabilitation treatment, by the age of 10 during other hospital treatment, and children with severe or profound mobility or multiple disabilities by the age of 16), so that they can independently cope with the disease, hospitalisation and the accompanying stress. Children who do not fit within these age limits can only be hospitalised with their parent if the parent themselves pays the hospital for accommodation. 

In terms of equal treatment, it is important that the needs of each child are taken into account during treatment and not their age, since age may not be an indicator of a child’s ability to cope with stress. Nor is age the only criterion in terms of coping with hospital experience. For example, a chronically ill seven-year-old child may be sufficiently accustomed to being in hospital and not need a parent by their side around the clock. At the same time, a child in their early teens may need the support of a loved one due to their first-time experience, trauma-induced shock, and other comorbidities (e.g., a child with autism). Nor can a difference in treatment be justified solely on the basis of the severity or type of disability. For example, a child with visual, auditory, intellectual or other disabilities may need the support of a loved one during hospitalisation in the same way as a child with a severe or profound mobility impairment or multiple disabilities. Children in a similar situation must be treated in a similar way.

Based on these reasons, the Chancellor of Justice proposed to the Government of the Republic that the regulation "List of health services of the Health Insurance Fund" be brought into line with § 12 and § 27(3) and (4) and § 28(1) and (4) of the Constitution insofar as these provisions do not guarantee every child the right to be in hospital with next of kin, if this is the best solution in the interests of the child. 

The Prime Minister tasked the Ministry of Social Affairs with resolving the situation. The Ministry of Social Affairs informed the Chancellor that amendments to the regulation will be prepared and will enter into force no later than 1 January 2025. 

Discrimination on grounds of family

The Chancellor of Justice received a petition from a person whom a company had not chosen for the position of warehouse worker because they had small children. A few days before starting work, the petitioner had received a letter from the company asking if the petitioner understood that in case of their children’s illness they would not be able to take care leave because the employee had to work alone and there was no substitute. A representative of the company explained to the petitioner that hiring them was still under consideration, because unexpectedly another candidate without children had been found for the same position. The person replied that such conditions did not suit them, and they were not hired.

A representative of the company explained to the Chancellor that it is difficult for the company to organise replacement of a warehouse worker. One of the reasons for rejecting the job applicant was also based on the explanations of their previous employer, who had claimed that at the previous job the person had had to miss work due to their children’s illness. The company considered the explanations from the job applicant and their previous employer to be contradictory, leading to the conclusion that the person was dishonest and might take care leave unreasonably.

The law does not allow an employer to treat any job applicant less favourably because they have children and must fulfil family responsibilities.

This constitutes direct discrimination on grounds of sex and is prohibited (Gender Equality Act § 5(1), § 6(1), (2) clause 1). When choosing a new employee, the employer must primarily take into account their education, professional skills and work experience. 

After investigating the case, the Chancellor concluded that the petitioner had been refused employment because they had children and they would have to take care leave in the event of the children’s illness. This allows the conclusion that the person would have been hired if they had not had parental responsibilities or if they had denied their existence. 

A parent is entitled to obtain a certificate of care leave in the event of illness of a child up to 12 years of age, certifying that they are relieved from work or service duties. This is a right provided for an employee by law (§ 19 clause 2 Employment Contracts Act, § 52(1) and (3) Health Insurance Act). The employer must take this into account when planning their work. 

The law prohibits requesting data from a job applicant about parenthood and performance of family obligations (§ 6(4) Gender Equality Act). Even if a person themselves informs the employer that they have children, the employer may not make a decision on hiring on the basis of those data or request a more detailed explanation from the job applicant as to how they intend to organise fulfilling their family obligations.

The Chancellor concluded that the company had discriminated against the person on the basis of parenthood and fulfilment of family obligations, and offered the parties a solution in conciliation proceedings, to which both agreed. The Chancellor approved the agreement, complying with which is mandatory for the parties similarly to a court decision.

Employer’s discriminatory questions

The Chancellor of Justice was also approached with another similar concern. A private company asked a candidate for the position of janitor for information on their criminal record. The person found that no reason existed to ask for such information from a person applying for the job of a janitor, and considered such questioning to be discriminatory.

The Chancellor explained that an employer must ensure protection of employees from discrimination and observe the principle of equal treatment. The Employment Contracts Act states that an employer may not, during pre-contractual negotiations or when preparing to conclude an employment contract in any other way (including in a job advertisement or at a job interview), request data from an applicant in which the employer has no legitimate interest. This means that the employer may express interest only in what is directly related to performance of work duties. Justification for asking for data must be assessed on the basis of the specific employment relationship and the duties to be performed. 

Guidelines issued by the Data Protection Inspectorate also state that an employer may ask for information only about offences that are relevant in terms of employment in the particular position. 

In the situation described, a person may ask the employer for an explanation of why a candidate for the position of janitor is asked for information about their criminal record, and the person may submit their objections or decline to submit the data. 

Discrimination against the elderly

One older person expressed dissatisfaction that the elderly were not included in political parties’ preference polls, so the results of the surveys do not reflect the opinion of older people.

The Chancellor’s adviser asked for clarification from companies conducting political party preference surveys. It turned out that one polling company indeed did not include people over the age of 84 in these surveys. A representative of the company agreed that everyone of voting age has the right to be included in political party surveys. They promised that in 2024, the upper age for respondents would be abandoned. The company kept its word, and now the results of political parties’ preferences polls of all polling companies also reflect the opinion of people over the age of 84. Thus, the problem was resolved without a Chancellor’s written recommendation.

The Chancellor was asked why people over the age of 74 are not offered computer and smart device training. 

It was revealed that older people are instructed in the use of computers and smart devices predominantly in libraries. Project-based courses are organised in a few schools and welfare institutions, and something is also offered by the Estonian Unemployment Insurance Fund. Unfortunately, little information is available about these training courses, so that computer training is not sufficiently accessible to the elderly. 

The Chancellor concluded that people should be more widely informed about training courses offered to older people on the use of computers and smart devices and the possibilities of user support. In the case of a large number of applicants, more training courses should be organised and consistent funding ensured for them. When establishing conditions for financing training, the principle of equal treatment should be respected and no unjustified age restrictions should be set. The Chancellor of Justice made a proposal to the Ministry of Education and Research, the Ministry of Culture, the Ministry of Social Affairs, the Ministry of Economic Affairs and Communications, and rural municipalities and cities. 

The Ministry of Education and Research promised to waive the age limit for participants in basic digital skills training. The Ministry of Culture agreed that the services offered by libraries should be communicated more broadly. The Ministry explained that the draft amendment to the Public Libraries Act includes, among the main tasks of the public library, support for lifelong learning and discovery, as well as counselling and guidance in the field of information and digital competences.

Rights of people with disabilities

Under the Chancellor of Justice Act, as of 1 January 2019, the Chancellor is tasked with promoting, protecting and monitoring implementation of the Convention on the Rights of Persons with Disabilities. The Chancellor helps to ensure that all people with disabilities can exercise fundamental rights and freedoms on an equal basis with others. In addition, the Chancellor of Justice must inform the public about implementation of the principles of equal treatment. In her promotional work during the reporting year, the Chancellor focused primarily on accessibility. 

Accessibility of television programmes

Over the past year, Estonian Public Broadcasting (ERR) has significantly improved accessibility of television broadcasts of events of national importance. Starting from September 2023, it will be possible to select automatic subtitles for all ERR own programmes, which are vital for hearing-impaired people. 

Telecasts of the events of the 106th anniversary of the Republic of Estonia were supplied with sign language interpretation or audio description. While in previous years it has happened that the Chancellor had to remind the ERR of the need to translate these broadcasts and sometimes partially cover its costs, this year the ERR itself had taken everything into account and ensured access to the broadcasts. 

The Chancellor hopes that this practice will continue. This is also in line with the Convention on the Rights of Persons with Disabilities (CRPWD), according to which objectives set in the field of culture must be implemented progressively. This means that, year by year, more and more TV programmes should be made accessible to people with disabilities. 

Self-checkouts in supermarkets

The Chancellor of Justice received a complaint that the increasing use of self-checkouts in supermarkets is putting at a disadvantage those elderly and disabled people who find using self-checkouts difficult or do not know how to use them. 

Under the Convention on the Rights of Persons with Disabilities, States Parties must take all appropriate measures to eliminate discrimination on the basis of disability (Article 4e). Article 9 of the Convention requires States to ensure that private entities that offer services which are provided to the public take into account all aspects of accessibility. Thus, shops selling basic necessities need to ensure that people with special needs are also able to make their purchases without more effort than usual. 

Although some shops still have more regular checkouts than self-checkouts and their working hours are longer, it cannot be assumed that all people will be able to visit such shops. However, self-checkouts cannot be used by many people with special needs. For example, blind people cannot cope with a touchscreen self-checkout that does not give or receive voice commands. A cash register whose screen is located at the level of the eyes of a standing person remains inaccessible to a person sitting in a wheelchair. It is difficult for a person moving with an assistive device (for example, a walking frame or crutches) to scan barcodes for goods with one hand. A person with an intellectual disability can become confused by what is written on the screen, they cannot find the right button or do not understand, for example, how to weigh goods.

The Products and Services Accessibility Act states that self-checkouts operating before 28 June 2025 can be used for up to another 20 years (§ 22(3)). Therefore, changes in this field can take a very long time. 

The Chancellor of Justice made a proposal to the major supermarkets to review their working arrangements. She stressed the need to rule out situations where food or other essential goods cannot be purchased because the shop only uses self-checkouts that do not meet accessibility requirements and where the shop’s staff are not ready to assist people or are not in the salesroom. 

Access to a dwelling

A person with a disability contacted the Chancellor of Justice because the city of Tartu had failed to fulfil its promise and had not guaranteed them access to their apartment. The petitioner has been living in an apartment offered by the city since 2009. Although the apartment has been adapted to suit the wheelchair user, it is very difficult for them to get in and out of the apartment: there are several stairs in the house that the person cannot use on their own due to their need for assistance. 

The Chancellor made a proposal to Tartu city government to make the disabled person’s home accessible and reassess whether their need for assistance has been met. 

The city government did not consider it necessary to make the dwelling accessible and reasoned that the city has other, accessible dwellings that may be suitable for the person. The Chancellor emphasised that it is not compatible with the spirit of  General Comment No 5 to the UN Convention on the Rights of Persons with Disabilities for a person with disabilities to be offered residence in only one particular place or building. 

According to Article 19 of the CRPWD, persons with disabilities have the right to choose their place of residence. The same article emphasises that people have the right to live in the community. Accessible housing for people with disabilities must be accessible throughout the region. This offers people a choice. Paragraph 54 of that General Comment states that States Parties to the Convention must eradicate all barriers (including inaccessible housing) that prevent people with disabilities from living and coping independently in the community. The Committee stresses that the right to choose a place of residence and to live in the community can only be viewed in conjunction with Article 9 of the Convention, which states that people with disabilities must have the same access to the physical environment, information, etc. as all others. Article 9(1) requires elimination of obstacles and barriers to accessibility of buildings, roads and other indoor and outdoor facilities (including schools, housing, medical facilities and workplaces).

The city of Tartu has commendably built, renovated and made accessible several social dwellings. At the same time, it is not enough to make only a couple of houses owned by the city accessible. In order for a person with disabilities to participate in community life on an equal footing with others (Art. 19 CRPWD), as many buildings as possible must be accessible. Only in this case is it possible that a person with special needs can, for example, visit a friend or exactly the particular event they want to go to. 

The accessibility of dwellings built before Estonia regained its independence has also been analysed by the Accessibility Task Force. Summing up its work, the task force recommended improving the accessibility of precisely such houses and coming up with so-called standard solutions. It was considered particularly important that accessibility problems be also resolved during reconstruction works to increase energy efficiency. In the long run, all dwellings should be accessible. Article 4(2) of the CRPWD states that each State Party must take measures enabling people with disabilities to progressively realise their economic, social and cultural rights. This means that although accessibility cannot be ensured overnight in all walks of life, there must be a plan as to how and during which period it will be done. This concerns all cities and rural municipalities. 

The right to live at home

The guardian of a working-age woman contacted the Chancellor of Justice with a concern that the Social Insurance Board was no longer willing to finance the special care service necessary for their ward. Specifically, the Social Insurance Board had come to the understanding that this service was not suitable for this person in need. 

The guardian had also approached the local authority for assistance and feared that the ward might be offered the round-the-clock general care service provided outside the home. This would have meant that the ward could no longer have lived in her own home. The guardian found that, given the age and disability of their ward, this service may not be suitable for her. 

The Chancellor explained to the guardian that the local authority must offer the general care service provided outside the home as both a daytime and round-the-clock service (§ 20(2) and (3), § 22(2) Social Welfare Act). The explanatory memorandum (page 23) drawn up by the initiator of this Act states: “Day-care, i.e. the daytime general care service, may be needed by persons who, at night, are able to cope independently in their own home or have guaranteed care at night and supervision through informal care”. The law does not link provision of the general day-care service to the type or severity of disability or other health condition, so that cities and rural municipalities must organise this service for all those in need. 

Provision of the general day-care service would also best conform to the principles of social welfare. In line with these principles, a person in need is offered, first of all, the kind of assistance that enables them to live at home or receive a service offering a home-like environment and living arrangements (§ 3(1) clause 2¹ Social Welfare Act). Article 19 of the Convention on the Rights of Persons with Disabilities also requires persons with disabilities to be able to choose their place of residence and where and with whom they live, on an equal basis with others. They are not obliged to live in a particular living arrangement (see the explanations on Article 19 (para. 21) by the Committee on the Rights of Persons with Disabilities, and on the assistance offered the Committee’s decision of 24 March 2022 in case S. K. v. Finland, para. 9.2). 

A person cannot be obliged to stay overnight in a care home or stay there on every day of the week, because this service is always provided on the basis of a person’s free will (§ 12(1) Social Welfare Act).

If a city or rural municipality knows that a person is ready to use only the daytime general care service, provision of the round-the-clock service to them must be thoroughly considered. 

Complying with good administrative practice

The guardian of an adult disabled person complained that the guardian must submit monthly bills from the special care institution, fuel cheques and a bank account statement to the municipality in order to receive support for their ward. The guardian considered it humiliating and burdensome. 

The Chancellor found that although the rural municipality government pays the support voluntarily, it still has to follow the principles of good administration and provide reasoning for its decisions. The rural municipality government may also not impose superfluous conditions on receiving support. The Chancellor recommended that the municipality should consider whether requiring fuel cheques was justified from the point of view of both the municipality and the guardian.

Additionally, it was revealed that the municipality had assessed the ward’s need for assistance three times in the past five years. The assessment of the person’s need for assistance had not changed during that period and the decisions to grant assistance based on those assessments were also substantively the same. At the same time, each social service was assigned a different deadline: from half a year to two to three years. Since a different deadline had been set for the provision of each service, every now and then the guardian had to submit a new application for assistance to the rural municipality government in order to ensure consistent assistance to the ward.

The Chancellor asked the municipality to consider whether it was justified to carry out a regular assessment of the need for assistance so frequently. She suggested assessing whether it would be possible to determine, in a single decision and on a uniform basis, what services the municipality organises for a person in need and what support it provides. The Chancellor explained that a municipality must justify why it assigns a service to a person for a specific period and how it meets the person’s need for assistance. 

Supporting children with special needs in school and kindergarten 

The Chancellor of Justice received a letter from parents whose child had been left without a support person according to a decision of the rural municipality government, although the child still needed the help of a support person at school. The child had been receiving the support person service for more than two years and it was clear that the child’s need for assistance had not changed during the school year. Nor was the necessary assistance ensured through support provided by the school. Because of this, the child had to be absent from school for some time. 

The Chancellor emphasised that the task of the rural municipality government is to arrange the necessary assistance for the child through either the social or educational system, or both. At the same time, the rural municipality government was both the owner of the school and the organiser of social services for the municipality’s residents. The Chancellor recalled that the rural municipality government is responsible for ensuring that assistance offered to a child is not interrupted. Even if the rural municipality government is convinced that the child should receive assistance from the education system, it must continue supporting the child through the social system until the school is ready to adequately support the child. 

Thus, the Chancellor asked the rural municipality government to make a new decision to resolve the matter and to provide the child with the necessary assistance. The municipality took the Chancellor’s recommendation into account.

One parent was concerned that their children did not receive speech therapy in kindergarten. The parent was dissatisfied that the rural municipality was willing to reimburse them only part of the expenses they had incurred in obtaining the assistance of a speech therapist for their children. 

According to the law, a child is entitled to free speech therapy in kindergarten. This opportunity must be created by the owner of the kindergarten, i.e. the local authority. The shortage of speech therapists does not relieve the city or rural municipality of this task. If the owner of the kindergarten fails to fulfil the task, i.e. fails to arrange the assistance of a speech therapist, it must reimburse the parent for the costs of a speech therapist’s appointment incurred by the parent. 

The municipality government resolved this problem in the course of the Chancellor’s proceedings. The Chancellor also recommended that the municipality government reimburse the costs of the speech therapist’s appointment incurred by the parent. The municipality government followed the Chancellor’s recommendation.

The right of a parent with a child with disability to the inviolability of private life

A parent of a child with a disability asked the Chancellor to check whether the local authority could require them to submit an application every time they need a babysitter for their disabled child. Each time, the local authority wanted to decide, on the basis of the parent’s application, whether the use of the babysitter’s help in a particular case was justified.

The Chancellor found that such a condition imposed on the petitioner was not in accordance with principle of human dignity laid down by § 4 of the General Part of the Social Code Act or the right to inviolability of private life (§ 26 Constitution). 

A person must disclose their private data only to the extent necessary to make a decision concerning assistance to them. When providing the parent of a disabled child with the assistance of a babysitter, it should generally be sufficient to provide data showing that raising a disabled child entails a higher care burden than usual, which is why the parent needs time off from care. 

In order to assess a parent’s burden of care, neither the city nor rural municipality needs to know what the person raising a child with a profound disability does in their free time. It does not matter whether a parent with a high care burden applies for a babysitter in order to go for a run in the forest, to a hairdresser or to visit a relative. The same things are done by parents who do not have to care for a child with a profound disability, but who can take their child with them or leave the child at home alone, or ask next of kin to mind the child during this time. 

Payment of work ability allowance

Already in the previous annual report we wrote that the Chancellor’s assistance was sought by a disabled person with no capacity for work whose work ability allowance in one month was reduced so much that in that particular month they only received 35 euros. The person found themselves in this situation because, in the month of termination of their employment, they had been simultaneously paid the last month’s salary along with salary for the month of termination of employment, as well as remuneration for unused vacation days. 

Although the Chancellor of Justice informed the Estonian Unemployment Insurance Fund, the Ministry of Economic Affairs and Communications, as well as the Social Affairs Committee of the Riigikogu of the person's concerns, none of them took any action. Therefore, the Chancellor made a proposal to the Riigikogu to bring the Work Ability Allowance Act into line with the Constitution so that such situations could be avoided in the future. The Riigikogu supported the Chancellor’s proposal.

Impact of the motor vehicle tax on people with disabilities

On 12 June, the Riigikogu passed the Motor Vehicle Tax Act. The Chancellor of Justice also expressed her views on the Draft Act, expressing concern about how motor vehicle tax might affect the life of people with disabilities. The Motor Vehicle Tax Act provided a tax exemption for vehicles specially adapted or rebuilt for people with disabilities, but not for all vehicles used for transport of disabled people.

The President of the Republic refused to promulgate the Motor Vehicle Tax Act, citing unequal treatment of people with disabilities. 

The Riigikogu amended the Act and adopted it on 29 July. 

According to the amendments, vehicles rebuilt or adapted for people with disabilities will not be granted the previously planned exemption. However, the same law introduced amendments to the Social Benefits for People with Disabilities Act, increasing some of the monthly benefits for people with disabilities and offering a one-off allowance to mitigate the impact of motor vehicle tax. In addition, amendments were introduced to the Social Welfare Act which will facilitate provision of necessary aids and reduce the own contribution paid for them.