Labor rights, obligations during martial law, dismissal, suspension, reinstatement

• General information about changes in labor law
• Additional informing the employee by the employer
• Termination of the employment contract (dismissal)
• Vacation changes
• Changes in working hours
• Part-time
• Suspending and resuming work
• Restoration of State Labor measures

General information about changes in labor law

Law of Ukraine No. 2352-IX "On Amendments to Certain Legislative Acts of Ukraine on the Optimization of Labor Relations" dated July 1, 2022, changes were made to labor legislation regarding both the legal regime of martial law and the general optimization of labor relations. The changes made relate to the termination of employment contracts and the possibility of their suspension, working hours, informing the employer of employees, vacation, exchange of documents, the ratio of monetary amounts, the possibility of compensation and the resumption of State Labor control measures.

In short, these changes slightly “tighten the screws” for workers employed in critical infrastructure facilities, for example, in the defense sector, the life support sector, and also give the employer the right to increase hours of work, reduce days off, extend the night shift, limit vacation, etc. Of course, everything is within reason, despite the martial law, no shocking changes have been introduced, and at the same time, old unresolved issues on labor legislation have been resolved, facilitating the hiring, renewal or dismissal of workers, their fuller information and the possibility of additional communication by the employer and an employee.

Additional informing the employee by the employer

This group of changes, which can be conditionally attributed to additional informing employees, includes the following obligations of the employer:

• • If the employee works under a fixed-term employment contract, he must be informed about suitable vacancies with the possibility of concluding an open-ended employment contract
• • Before starting work, the employer must inform the employee about the workplace, means of work, rights, obligations, working conditions, etc. These changes are related to the application in legislation of the provisions of Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and presumptive working conditions. These include informing about the rules of the labor schedule, the conditions for establishing the working hours, the duration of working hours and rest, the duration of the annual leave, the conditions and amount of remuneration, clarifications regarding the terms of the employment contract, etc. Instruction on labor protection, industrial sanitation, occupational health and fire protection is also required. Under the signature, the employee should be informed about the presence of hazardous and harmful factors in the workplace and the possible consequences of their impact on health, as well as information about benefits and compensation for working in these conditions
• • It is allowed to familiarize employees with documents using electronic communication networks and the imposition of an improved electronic signature or a qualified electronic signature, as well as alternative ways to inform the employee. When working remotely, the employer, if necessary, provides the employee with the equipment and tools necessary for the performance of work, as well as recommendations for working with them, can teach safe methods of working on a specific technical tool in the form of remote instruction. Also, with the consent of the parties, the employment contract may provide for additional labor safety conditions

From these points it is clear that the employer has an obligation to inform employees about all important aspects of work, as well as about the availability of suitable vacancies that allow workers to move from temporary to permanent work. Regarding the last point, it is possible to fulfill various legal requirements remotely or during remote work, where, for example, the fact of instruction (training) on labor protection and fire safety will be confirmed by the exchange of relevant electronic documents over the Internet, which is quite understandable, given that many have evacuated away from the war and want to return to work, at least remotely.

Termination of the employment contract (dismissal)

In connection with death

It's not a shame, but only the war forced legislators to think about new grounds for terminating an employment contract, which were understandable and natural even before it - this is the death of an employee or employer. Previously, at the death of an employee, the problem of processing personnel documents and reporting appeared, because for some reason there was no specific rule for marking the termination of an employment contract. And in the event of the death of an employer, for example, an FLP, it was impossible for the worker to register with the Employment Center or officially find a job in another job, because he still had a job for all regulatory authorities - only through the court it was possible to break off labor relations! But now there are no such legal conflicts, because the following grounds for termination of an employment contract are provided:

• • Death of an individual employer
• • employee death
• • absence of an employee from work and information about the reasons for such absence for more than four consecutive months

On the death of an employer or employee - it also provides for the possibility of providing grounds for terminating an employment contract upon entry into force of a court decision on recognizing a person as missing or declaring him dead.

About the absence of an employee at work is not the same as dismissal through absenteeism. This is a new basis that should be applied in the event of the obligatory actual absence of an employee from the workplace for more than 4 consecutive months and the absence of information from the employer about the reasons for such absence. That is, here we are not even talking about a valid or disrespectful reason for absence from the workplace, for example, if an employee evacuated abroad and from there sent a letter to the employer about the reason for his absence, this ground for dismissal can no longer be applied. This rule is most suitable for those who are simply "missing" from the employer's point of view - without explanation, information or explanation. It is interesting that here it becomes possible for the employee to further prove the illegality of his dismissal in court, if, for example, provide proof of informing the employer of the reason for his absence (even disrespectful, but sent by registered mail)

Due to destruction of property or lack of working conditions

At the initiative of the employer, there is a legal and quite logical basis for dismissing an employee if the production, organizational and technical conditions are destroyed or absent, due to which it is impossible to provide the employee with work.

This grounds, although a little late, but it makes it possible to terminate the employment contract with the worker, with a justified impossibility of providing the worker with work, when:

- the means of production or the property of the employer were destroyed as a result of hostilities
- it is impossible to transfer an employee with his consent to another job

But within a year, in case of restoration of working conditions, the employee has the right to re-conclude an employment contract in case of return employment, if the employer hires employees of similar qualifications. Recall that upon dismissal on this basis, the employee should be paid a severance pay in the amount of at least the average monthly earnings, if the contract did not establish an even higher monetary assistance. It is also interesting that this dismissal does not require the prior consent of the trade union representative or the elected body of the primary trade union organization.

In order to avoid misunderstandings and reduce future disputes, we recommend that before making a decision on the application of this ground for dismissal, inform employees about the destruction of property and the absence of organizational and technical conditions for work and the possibility of rehiring within a year upon resumption of work (with a request and saving the contact details of all employees who wish to do so)

Recall that without these changes, in such cases, the general dismissal procedure was previously applied, which provides for:

- notification of the employee about dismissal at least 10 calendar days in advance - providing information to the primary trade union organizations about the planned dismissal of employees at least 10 calendar days in advance (reasons, number and categories of dismissed employees, etc.)
- holding consultations with trade unions on measures to prevent dismissal at least 5 calendar days in advance
- notification of the Employment Service about the planned dismissal of employees

Informing the employee about all accrued and paid amounts upon dismissal

Now, with a copy of the dismissal order, the employee must also receive a written notice of the amounts accrued and paid to him upon dismissal. This list may include:

- salary for hours worked for the month of dismissal
- Compensation for the days of non-scheduled annual leave
- severance pay

We also remind you that no separate taxation norms are established when an employee is dismissed, all of them are considered taxable income (18% personal income tax + application of NSP if necessary and 1.5% OT). The same applies to the payment of ERUs, but do not forget about the nuance - if an employee stays in employment for a full calendar month or works all the working days of the reporting month, ERUs are paid as always, and in case of dismissal within a month, if the salary for this time is less than the minimum wage (at the moment it is 6700 UAH) - then the ERUs are paid at the level of the minimum insurance premium (22% of the minimum wage, at the moment it is 1474 UAH)

Reducing the limitation period in labor disputes

The changes also affected the statute of limitations in labor disputes - from now on, when resolving a labor dispute, for example, regarding the payment of appropriate amounts to an employee upon dismissal, he can apply to the court only within three months from the date of receipt of a written notification of accrued and paid amounts. And if the case does not concern payments, but only dismissal, then the employee has the right to go to court within a month from the date of delivery of a copy of the order or order to dismiss.

If the deadlines have expired, but the employee has good reasons for missing these deadlines, he has the right to apply to the court to restore these deadlines if no more than one year has passed from the date of receipt of the notice of dismissal or accrual of the amounts paid.

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Abolishing the retention of average earnings for those who went to serve

The rule that an employee who is accepted or called up for military service must maintain average earnings has been abolished. This, according to legislators, will help to avoid discriminatory approaches towards employees who have gone to serve.

Vacation changes

Salary for the entire vacation is paid before the start of the vacation

In the amendments, a norm appears that wages to employees for the entire vacation period must be paid before the start of the vacation, unless otherwise provided by the labor or collective agreement. But, if we assume that the employment or collective agreement provides for the payment of wages after vacation, then it seems like you can do this, and Article 9 of the Labor Code states that if the condition of the employment agreement worsens the position of the employee compared to the legislation of Ukraine on work, then this condition is invalid. That is, the fact that the clause on the payment of wages after vacation in the contract is a clearly deteriorating position of the employee, in comparison with the general provisions, and therefore this norm can be considered invalid? It turns out that the legislators wanted to somehow mitigate the introduction of changes to this norm, but this did not work out very well - which means that wages for employees for the entire vacation time should now be paid before the start of the vacation.

Unused vacation is "not transferable" to the next employer

There used to be a rule that an employee who had unused leave from a previous job could come to a new one and receive it “by inheritance” from a previous job, having legal grounds to use it for their own benefit. From now on, this mechanism is canceled, mainly due to the fact that upon dismissal, a full and final calculation is made, which was mentioned above in this article, and this calculation now includes the accrual and payment of monetary compensation for all unused vacation days. That is, the employer, upon dismissal, repays the debt for unused vacation and “cancels” it, which automatically reduces problems for the next employer. And rightly so, because why should an employer be liable for a failure to fulfill an obligation to an employee by a previous employer?

Cancellation of the deduction of seniority, giving the right to leave, for those who went to serve

It used to be that employees who went to serve (were called up for military service or military service by conscription or contract) retained their place of work and position at the enterprise, and also calculated the length of service that gave them the right to leave. From now on, such employees do not count the length of service that gives them the right to leave while they serve.

24 day vacation limit

By decision of the employer, during the period of martial law, the provision of annual basic leave to an employee may be limited to 24 calendar days for the current working year. If the employee is entitled to a longer vacation, and the employer has decided to limit it, then the difference in vacation days must be granted at the end of martial law. Recall that employees of the coal, shale, metallurgical, electric power industries, persons with disabilities or who are under 18 years of age are entitled to vacations of more than 24 calendar days.

Restricting the main annual leave is the right of the employer, not the obligation, plus, in addition to the main annual leave, there are additional, social, educational and other types. Please note that this restriction applies to the vacation of the current working year, that is, these restrictions do not apply to unused vacation days of previous working years.

Also, during martial law, the obligation of the employer to provide unused annual leave for no more than 12 months after the end of the working year for which the leave is granted, as well as the prohibition of not providing full-time annual leave for two consecutive years, has been suspended.

Changes in working hours

During the period of martial law, the normal working hours can be increased to 60 hours per week for employees of critical infrastructure facilities (life support, defense, etc.). It is interesting that the objects of critical infrastructure also include transport enterprises, banks and finance, information technology and others, but what exactly is related to the sphere of life support of the population is not explained. In addition, this, as in the previous paragraph, is the right, and not the obligation of the employer, he can increase the normal working hours if necessary.

At the same time, for employees of critical infrastructure facilities, for whom the legislation provided for a reduction in working hours, their normal working hours were reduced from 50 to 40 hours. Such workers include persons employed in jobs with harmful working conditions or who are under 18 years of age, as well as certain categories of workers, such as doctors, teachers, etc.

In connection with these changes, the employer is given the right to establish a five-day or six-day work week and change the start and end times of daily work. The obligation to reduce the duration of the night shift (work) by 1 hour is also canceled, but it is separately indicated that pregnant women and women with a child under one year old, persons with disabilities who, according to medical recommendations, are contraindicated for such work are not involved in night work without consent. .

Also, the duration of the weekly uninterrupted rest (day off) can be reduced to 24 hours (except for minors).

The norms for reducing the duration of work on the eve of holidays, non-working and weekend days, on holidays and non-working days for the period of martial law also do not apply.

Part-time

From now on, at the level of the law, such a concept as part-time employment is fixed, that is, the performance by an employee, in addition to the main, of other paid work on the terms of an employment contract in his spare time from the main job at the same or another enterprise, institution, organization or employer -individual, as well as the fact that they receive wages for the work actually done. This was done to cancel the norm on the conditions of part-time work for employees of state enterprises, institutions, organizations, determined by the Cabinet of Ministers of Ukraine.

Suspend and Resume

It is now possible to suspend and resume work by suspending an employment contract with an indication of the conditions for its restoration. The suspension of an employment contract is considered to be a temporary cessation by the employer of providing an employee with work with a temporary cessation of work in connection with the armed aggression against Ukraine, when the possibility of both parties to fulfill the obligations stipulated by the employment contract is excluded. Such suspension is carried out at the initiative of one of the parties for a period not exceeding the period of martial law. This does not mean the termination of the employment relationship, since in the event of the termination or cancellation of martial law, the employer must renew the employment contract. If the resumption of work is planned before the end of martial law, the employer must notify the employee about the need to start work 10 calendar days before the resumption of the employment contract.

It is issued by the relevant order or order on the suspension of the employment contract, which indicates:

• • Reasons for suspension (indicates the reasons for the impossibility of fulfilling the terms of the employment contract by the employer and the obligations of the worker)
• • Way of information exchange (between employer and worker)
• • Suspension period
• • The number, categories and full names of workers, their registration number or series and passport number (if they refused to accept the registration number)
• • Conditions for the renewal of an employment contract

Such a mechanism for suspending an employment contract cannot be a hidden punishment and does not apply to heads and deputy heads of state bodies, as well as local government officials holding elected positions.

Restoration of State Labor activities

These changes also resumed the measures of the State Labor authorities, which is not surprising, because the employer, due to the conditions of martial law, has the opportunity to increase pressure on employees, neglecting the obligation to comply with the law. Inspectors of the relevant subdivisions for supervision and control over compliance with labor legislation can now carry out unscheduled measures of state supervision and control over compliance with labor legislation by legal entities and individuals, concerning both new changes and issues of identifying unregistered labor relations and the legality of termination of employment contracts.< /p>

These unscheduled activities can be carried out not only at the request of an employee or trade union and other bodies, as previously provided, but also at the request of the Kiev city military administration or the regional military administration, or in case of failure to comply with instructions to eliminate violations of legal requirements issued after May 1, 2022.