17 December, 2025
On March 24, 2022, the Law of Ukraine “On the Organization of Labor Relations under Martial Law” (hereinafter referred to as Law No. 2136) came into force, which defines the features of civil service, service in local government bodies, the features of labor relations of employees of all enterprises, institutions, organizations in Ukraine, regardless of the form of ownership, type of activity and industry affiliation, representative offices of foreign business entities in Ukraine, as well as persons working under an employment contract concluded with individuals during the period of martial law, introduced in accordance with the Law of Ukraine “On the Legal Regime of Martial Law”. Law No. 2136-IX introduced a new concept of suspension of an employment contract in labor legislation (Article 13).
Thus, the suspension of an employment contract is a temporary cessation by the employer of providing the employee with work and a temporary cessation by the employee of performing work under the concluded employment contract in connection with armed aggression against Ukraine, which excludes the possibility of both parties to the employment relationship to fulfill the obligations stipulated by the employment contract.
The suspension of an employment contract may be carried out at the initiative of both the employer and the employee for a period of no more than 90 calendar days during martial law and may be extended by agreement of the parties for a period of more than 90 calendar days, but not more than until the day of termination or cancellation of martial law.
During the specified period, the employer is not obliged to pay the employee a salary, make guarantee and compensation payments, including providing, paying and compensating for any vacations, days of rest, temporary disability benefits and submitting relevant applications-calculations stipulated by the legislation on mandatory state social insurance.
However, in practice, employers allow violations of employees' labor rights when applying the specified norm.
So, we present some legal positions of the Supreme Court of Ukraine on the suspension of the employment contract.
Resolution of the Supreme Court of the Second Judicial Chamber of the Civil Court of Cassation dated 02/14/2024 in case No. 201/791/23 (proceedings No. 61-11881св23) on the suspension of the employment contract
The essence of the case.
The plaintiff filed a lawsuit with the court to declare the suspension of the employment contract illegal, and to recover the average earnings for the period of forced absenteeism.
The Plaintiff noted that at the time of the issuance of the contested order to suspend the employment contract, as well as during the consideration of the case, the Defendant continued to carry out its activities at another location, of which the Plaintiff was not properly and in advance informed, and was also deprived of the opportunity to receive compensation when moving to work in another locality, which is established by Article 120 of the Labor Code of Ukraine.
The position of the Supreme Court
The Court established that the Plaintiff was in an employment relationship, and in connection with the large-scale invasion of the territory of Ukraine by the troops of the Russian Federation on February 24, 2022, the employer issued an order on August 22, 2022 to suspend the employment contract, in which it referred to the inability of the employer and the employee to fulfill their duties in connection with the partial destruction and significant damage to the enterprise located in the temporarily occupied territory.
Analyzing the norm of Article 13 of Law No. 2136, the court noted that the above special norm of law gives the employer the right to temporarily suspend the employment contract with the employee in the event of impossibility due to military aggression against Ukraine to provide the employee with work.
At the same time, such a right is not absolute. To apply this norm of law, the employer must be in such circumstances when he cannot provide the employee with work, and the employee cannot perform the work. In particular, if the production, organizational, technical capabilities, means of production necessary for the employee to perform the work are destroyed as a result of hostilities or their operation is impossible for objective and independent reasons from the employer, and it is impossible to transfer the employee to another job or involve him in work under a remote form of labor organization.
A change in the location of the enterprise cannot mean the employer's inability to provide work to employees.
In addition, the Defendant suspended the employment contracts selectively with individual employees, including the Plaintiff, but not with all employees.
The Defendant's selective approach to suspending the employment contract with not all employees indicates a violation of the equality of labor rights of citizens of Ukraine, as well as the defendant's admission of discrimination in the field of labor against the Plaintiff.
Since the court did not establish the circumstances of the impossibility of the Defendant providing work in connection with the military aggression of the Russian Federation against Ukraine, and the Plaintiff - performing it, the court concluded that the suspension of the employment contract with the Plaintiff is illegal.
When resolving the issue of collecting average earnings, the court applied the analogy of the law when considering an individual labor dispute.
The Labor Code of Ukraine does not contain a norm that would regulate the issue of payment of average earnings during the illegal suspension of the employment contract in this situation, since this is neither idle time nor the dismissal of the employee. At the same time, it was established that the Defendant’s illegal actions deprived the Plaintiff of the opportunity to work and receive income, therefore the court of first instance reasonably imposed on the Defendant the obligation to compensate him for the average salary during his stay in forced absenteeism, and the arguments that such an obligation is imposed on the state carrying out armed aggression in accordance with Article 13 of Law No. 2136 are groundless in this case.
Therefore, the court, in accordance with Article 43 of the Constitution of Ukraine, the most similar (analogous) to this situation is the application of Article 235 of the Labor Code of Ukraine.
Similar positions are set out in the resolutions of the Supreme Court of Ukraine dated 09/20/2024 in case No. 444/2538/23 (proceedings No. 61-7113св24) on the suspension of the employment contract and in case No. 922/831/23 dated 09/26/2024 (proceedings No. 638/2126/23) on the suspension of the employment contract.
Another amendment to Law No. 2136 is the possibility for an employee to protect his or her rights from potential abuses by employers, in addition to the right to judicial protection, by appealing the order to suspend the employment contract to the State Labor Service of Ukraine.
The State Labor Service may issue an order to the employer to cancel the relevant order (order) or to eliminate the violation of labor legislation in another way, which is mandatory for the employer to fulfill within 14 calendar days from the date of receipt of such an order, and in case of refusal of the employer to fulfill such an order, the latter will be forced to pay the corresponding fines established by the Code of Ukraine on Administrative Offenses of 850 or 1700 hryvnias.
I would also like to draw attention to the basic rights of the employee and the employer that apply under martial law.
For the employer:
- the possibility of establishing a probationary period, including for minors, persons with disabilities, pregnant women, single mothers with children under 14 years of age or a child with disabilities, internally displaced persons and other persons who were not previously subject to this;
- the possibility of increasing the duration of working hours to 60 hours per week at critical infrastructure facilities with a proportional increase in wages;
- the possibility of refusing to grant unused vacations for previous years;
- exemption from liability for violation of the obligation regarding the terms of payment of labor due to hostilities or other circumstances of force majeure. However, the above does not exempt employers from the obligation to pay wages;
- the possibility of transferring an employee to another job not stipulated by the employment contract, without his consent;
- it is allowed to dismiss an employee during temporary incapacity for work or vacation (except for leave due to pregnancy and childbirth and leave to care for a child until he reaches the age of three) - from the first day of starting work.
For the employee:
- the employee can request unpaid vacation for any period - against 15 days per year in peacetime. The employer is obliged to provide an employee who has gone abroad or acquired IDP status, at his request, unpaid vacation for up to 90 days;
- the employee may terminate the employment contract on his own initiative within the period specified in his application, that is, without notifying the employer in writing in two weeks.
Considering the above, unfortunately, it should be recognized that the provisions of Law No. 2136 and other adopted regulatory legal acts in the field of organizing labor relations under martial law can hardly be called those aimed at maximum protection of the rights and interests of employees; rather, on the contrary, the rights of employees are significantly narrowed compared to peacetime.
Senior Lawyer
Nataliia Ponomarova
|
