GILS Employment Law: Belarus

BELARUS

(1) Maternity and Family Leave Rights

1.1. How long is the duration of maternity leave?

Duration of maternity leave, as a general rule, is 126 calendar days; in cases of complicated births, including births of 2 or more children - 140 calendar days. For women permanently (predominantly) residing and (or) working in the radioactively contaminated area - 146 calendar days (in cases of complicated births, including births of 2 or more children - 160 calendar days).

1.2. What are the rights of a parent when returning to work after parental leave?

An employee retains his or her previous job during the parental leave, thus, once the parental leave is over, the employee may start working in his or her previous position. 

In case of impossibility to perform their previous work, women, who have children under the age of 1,5, are transferred to another job with the average salary of their previous job until the child reaches the age of 1,5 (par. 3 of Art. 264 of the Labor Code). 

A mother (stepmother) or father (stepfather), guardian bringing up:

• A child with disabilities up to the age of 18, upon the written application, is granted 1 additional day off each month with the average salary paid from the funds of the state social security following the procedure and under the conditions determined by the republican body of state administration implementing policies in the field of labor;
• A child with disabilities under the age of 18 years or 3 or more children under the age of 16, upon the written application, is granted 1 additional day a week with the average salary, or upon agreement with the employer, if it does not interfere with the normal activities of the organization, the established duration of work (shift) is reduced by 1 hour with salary determined by the republican body of state administration implementing policies in the field of labor;
• 2 or more children under the age of 16, upon the written application, are granted 1 additional day off work each month. A collective agreement or other internal legal act may include conditions on payment of the average salary for this day which is not granted by default (Art. 265 of the Labor Code).

Women with children under the age of 1,5 are provided, in addition to the general break for rest and meals, with additional breaks for feeding the child, which are included in working time and paid at the average salary (Art. 267 of the Labor Code). With the consent of the employee, the employer is obliged to extend the term of the contract or conclude a new contract:

1. with a working woman who is on maternity leave, a mother (father of a child instead of a mother, or guardian) who is on parental leave to care for a child up to the age of 3 - for a period not less than the end of the said leaves;

2. with a working mother (father of a child instead of the mother, or guardian) who started working before or after the end of the parental leave to care for a child up to the age of 3 years - for a period not less than the child's reaching the age of 5 (par. 3 of Art. 261-5 of the Labor Code).

1.3. Do fathers possess the right to take paternity leave? 

Fathers have the right to parental leave (Art. 185-2 of the Labor Code: a parental leave to care for a child until the child reaches the age of 3 is granted at the discretion of the family to the working father or other relative or a family member). In addition, when a child is born and brought up in a family, the employer is obliged, at the request of the father of the child, to grant him a leave without pay for a maximum of 14 calendar days (Art. 186 of the Labor Code).

1.4. Are there any additional parental leave rights that employers must adhere to?

As was mentioned, parental leave to care for a child until the child reaches the age of 3 may be granted at the discretion of the family to a working father or other relative, family member, or guardian of the child who is caring for the child (under certain conditions). 

Parental leave to care for a child up to the age of 3 is granted to a stepmother if such leave is not granted to the child's working father or other relative or family member. Parental leave to care for a child until the child reaches the age of 3 is also granted to specified individuals if the mother is unable to care for the child because of a group I disability or an illness that prevents her from caring for the child, confirmed by the conclusion of a medical advisory commission. 

Working fathers, other relatives, or family members caring for a sick child under the age of 14, a child under the age of 3, and a child with disabilities under the age of 18 in case of the mother's illness, as well as the child's guardian, are entitled to temporary disability allowances following the procedure and under the conditions stipulated by law. 

Working fathers on parental leave are provided with additional guarantees (termination of the employment contract on the employer's initiative is not permitted in certain cases provided for by law) (Art. 271 of the Labor Code).

1.5. Do employees have the right to flexible working arrangements if they are responsible for dependents? 

The flexible working arrangements are regulated by Art. 128-129 of the Labor Code. They are established by the employer upon individual or collective requests by the procedure determined by local legal acts under the condition that it takes into account the interests of production, does not lead to complications in the work of the organization, and does not disrupt normal activities and production rhythm. If the specified conditions are met, employees caring for dependents have the right to flexible working arrangements.

(2) Termination of Employment

2.1. Is it mandatory for employers to provide notice of termination of employment? How is the notice duration determined?

Generally, the employer is not required to notify employees of the intention to terminate employment relations with them. However, the legislation of the Republic of Belarus provides for some cases when such notification is the responsibility of the employer. 

Thus, the employer must notify the employee in writing of the upcoming dismissal:

1. in case of liquidation of the organization; closing a branch, representative office, or other organizational unit of the organization located in another area; workforce or staff reduction; 

2. in case of termination (suspension), under the legislative acts, of the activity of a notary, performing notarial activities in a notary bureau; of an individual providing services in the field of agrotourism; of an entrepreneur (except termination (suspension) of activities in connection with their conscription, referral to an alternative service) (par. 3 of Art. 43 of the Labor Code).

In such cases, notification must be sent by the employer to the employee at least 2 months before the dismissal, unless longer periods are provided for in the collective bargaining agreements or other agreements. 

If a fixed-term employment contract is concluded the employer must notify the employee about the decision to continue or terminate the employment relationship with it no later than 1 month before the expiration of a contract period (par. 2 of Art. 261-3 of the Labor Code). 

An employment contract with domestic workers may be terminated by the party agreement with a 3-day notice to the other party of a contract (par. 1 of Art. 311 of the Labor Code).

2.2. Can employers enforce "garden leave" during the notice period, where the employee remains employed but does not have to attend work?

"Garden leave" is a concept inherent to the countries of the AngloSaxon legal system. The essence of this leave is that during the notice period of termination of the employment contract the employee is not allowed to the workplace, official information, or client base and to communicate with clients to protect the employer's interests from possible negative influence or behavior of the dismissed employee. At the same time, such an employee continues to be employed and to receive a salary. 

The legislation of the Republic of Belarus does not provide for this type of leave.

2.3. What safeguards do employees have against dismissal? Under what circumstances is an employee considered to be dismissed? Is consent from a third party necessary before dismissal by an employer?

If the employee believes that he/she was illegally dismissed, he/she has the right to apply to the court with a corresponding lawsuit for reinstatement, recovery of average salary for the time of forced absenteeism, compensation for moral damage, and other claims. 

The term of appeal is 1 month from the date of delivery of a copy of the dismissal order, or from the date of issuance of the employment record book which contains the reason for termination of the employment contract, or from the date of refusal to issue these documents (par. 1 of Art. 242 of the Labor Code). In case of missing this term for valid reasons, it may be restored by the court (par. 4 of Art. 242 of the Labor Code). 

Dismissal of an employee, as a rule, takes place after issuance of a dismissal order, the employment record book, and making a final settlement. The day of dismissal of an employee is the last day of their work (par. 6 of Art. 50 of the Labor Code). 

In cases stipulated by the legislation collective bargaining agreements or other agreements, dismissal of an employee is possible only with prior notification of the trade union or with its consent (Art. 46 of the Labor Code).

2.4. Are there specific employee categories enjoying special protection against dismissal?

The employer can not initiate termination of the employment contract with the following categories of employees: 

1. pregnant women; 

2. persons on maternity leave caring for children under the age of 3; 

3. a parent caring for a child under the age of 3 to 14 (disabled child - up to 18).

In case of workforce or staff reduction, priority right to remain at work is given to the following categories of employees (with the same labor productivity): 

• who diseased and suffered radiation sickness as a result of the disaster at the Chernobyl Nuclear Power Plant;
• who participated in the liquidation of consequences of the disaster on the Chernobyl Nuclear Power Plant in 1986-1989 in the evacuation (exclusion) zone, or 1986-1987 in the zones of priority or subsequent relocation;
• disabled;
• other categories of employees stipulated by legislation, collective bargaining agreement or other agreements.

2.5. Under what circumstances is an employer justified in dismissing employees: 1) due to individual reasons; 2) business-related grounds? Do employees receive compensation upon dismissal, and if so, how is it calculated?

The reasons for termination of the employment contract on the initiative of the employer are provided for by Art. 42 of the Labor Code: 

1) related to the particular employee:

• non-compliance with job position or the work performed because of health status or insufficient qualifications that prevent the continuation of this work;
• non-appearance at work for more than 4 consecutive months because of temporary disability (not including maternity leave), unless the legislation establishes a longer period of retention of a workplace, or job position in case of a certain disease;
• failure to perform employment duties without a valid reason by the employee who has an unspent (unredeemed) disciplinary sanction;
• a single gross violation of employment duties, recognized as such according to the legislative acts;
• causing property damage to the state, legal entities and (or) individuals while performing employment duties (the damage must be established by a judgment that has entered into force), etc.

2) business-related: 

• liquidation of the organization; closing a branch, representative office, or other organizational unit of the organization located in another area; workforce or staff reduction;
• termination (suspension), under legislative acts, of the activity of a notary, performing notarial activities in a notary bureau; of an individual providing services in the field of agro-tourism; of an entrepreneur (except termination (suspension) of activities in connection with their conscription, referral to an alternative service).

If the reason for dismissal is as specified in par. 1, 2 of Art. 42 of the Labor Code (business-related), the employee is paid severance pay in the amount of at least 3 average monthly salary. 

The employee is paid severance pay in the amount of at least 2 weeks of average salary if the reason for dismissal is:

• refusal of the employee to transfer to another location together with the employer; to continue work because of changes in essential working conditions; refusal to continue work because of changing the owner of the property and (or) reorganization of the organization; the lease of the property complex or transfer to trust management of shares of the organization;
• non-compliance with the job position or the work performed because of health status or insufficient qualifications that prevent the continuation of this work.

Severance pay is also paid in other cases provided for by the Labor Code, other legislative acts, collective bargaining agreement, and other agreements (Art. 48 of the Labor Code). 

Also, an employee who has not used or has not used the entire leave is paid compensation regardless of reason for their dismissal. Compensation for full-time leave is paid, if by the day of dismissal, the employee has worked for the entire working year (12 months minus the total duration of the leave to which the employee is entitled). If by the day of dismissal, the employee has worked part of the working year, compensation is paid in proportion to the time worked (par. 1-3 of Art. 179 of the Labor Code).

2.6. Are there particular protocols that employers must adhere to regarding individual dismissals? 

When dismissing an employee, the employer must meet the following requirements:

1. notify the employee (in cases provided for by law); 

2. notify the trade union (in cases provided for by law) or obtain its consent to the employee's dismissal (if such an obligation is provided for by a collective bargaining agreement or other agreements); 

3 issue a dismissal order that must be signed by the employee; 

4. make all payments that the employee must receive from the employer on the day of dismissal, including payment for unused leave; 

5. pass the employment record book.

2.7. What claims can an employee pursue if they are dismissed? What remedies are available for a successful claim?

Depending on what rules are violated by the employer on dismissal, the employee has the right to apply to the court with a corresponding demand for: 

1. reinstatement and recovery of an average salary during forced absenteeism; 

2. changing the reason for dismissal, recovery of an average salary during forced absenteeism;

3. recovery of a final settlement and an average salary to delay such a settlement; 

4. passing the employment record book, recovery of an average salary during forced absenteeism and changing the date of dismissal to the day of passing of the employment record book;

5. passing a work certificate (for example, the experience or salary certificate).

If the court considers the claim justified, it will commit or oblige the employer to commit appropriate actions aimed at restoring the rights of the employee. At the same time, when considering a claim for reinstatement, the court may find such reinstatement impossible or inexpedient. In such a situation, the court, with the consent of the employee, has the right to impose on the employer the obligation to pay compensation of 10 months' average salary.

2.8. Can employers resolve claims before or after they are initiated?

The employer has the right to settle an individual employment dispute both before and after the initiation of proceedings. If the dispute is settled, the employee has the right to withdraw the lawsuit. Otherwise, the dispute will be considered and the court will issue a judgment against the employee.

2.9. Does an employer bear additional obligations when dismissing multiple employees simultaneously?

A mass dismissal during the liquidation of an organization or workforce reduction is the dismissal of 25 people or more. 

In case of a mass dismissal no later than 3 months in advance the employer must inform: 

1. relevant trade unions (if they are set up in the organization); 

2. labor, employment, and social protection authorities at the employer's location.

2.10. How can employees enforce their rights regarding mass dismissals, and what are the consequences if an employer fails to comply with its obligations? 

If the employer fails to comply with its obligations, employees can apply to the court with a claim for their reinstatement. If reinstatement is impossible, employees can demand compensation in the amount of a tenfold salary.

(3) Data Protection and Employee Privacy 

3.1. How does the employment relationship get impacted by employee data protection rights? Is the transfer of employee data across borders unrestricted for employers?

According to the Law on Personal Data Protection, personal data processing in the course of employment (service) relations, as well as in the course of employment (service) activities, is carried out without obtaining the consent of the employee. 

Cross-border data transfer is prohibited if the territory of a foreign state fails to ensure an adequate level of protection of the rights of personal data subjects, however, personal data may be transferred to a foreign state:

1. with the consent of the employee, taking into account that the employee has been previously informed of the possible risks; 

2. personal data is obtained based on a contract concluded (to be concluded) with the subject of personal data to perform actions established by this contract; 

3. personal data may be obtained by any person by sending a request; 

4. such transfer is necessary for the protection of life, health, or other vital interests of the subject; 

5. in other cases, when it is carried out by the competent authorities for the purposes established by Art. 9 Law on Personal Data Protection.

3.2. Are employees entitled to obtain copies of any personal information held by their employer?

According to Art.11 of the Law on Personal Data Protection, the data subject, without reasoning his/her interest, may request information in writing or electronically from the operator regarding the processing of his/her data, including information about the operator, what personal data of the data subject are processed, for what purpose and for what period they have been collected.

The employer is obliged to provide the requested information in an accessible form within 5 working days (there is no prohibition to provide a copy, so it is possible to transmit the information in this way), or justify the refusal to provide the data.

3.3. Do employers have the authority to conduct preemployment checks on prospective employees (such as criminal record checks)?

In cases where the company needs information about a potential employee, it may make requests to state authorities and other institutions. In addition, in cases stipulated by law, the employer must request a profile from the previous place of work. The issues of acceptable boundaries in conducting preliminary checks are not regulated (except for state authorities) and are decided by companies in the absence of violations of the legislation, including violations of the law on personal data and their redundancy. In cases stipulated by the legislation, for certain categories of employees, it is necessary to request information on the absence of a criminal record. Information on criminal records is provided by the information unit of the Ministry of Internal Affairs at the request of the employer. This information is provided to the employer free of charge.

3.4. Do employers have the right to monitor employee emails, phone calls, or use of company computer systems?

The employer has a right to check corporate e-mail, telephone calls, and equipment for control over compliance with labor discipline, safety of confidential information, and in other cases stipulated by the legislation. The procedure for conducting an inspection shall be fixed in a local legal act, with which employees shall be informed under signature. Personal calls and e-mail should not be used and checked by the employer in any way, as this is a direct violation of the constitutional rights and freedoms of any employee. claim the employer before going to the court. But if a labor Dispute Commission (non-judicial body for consideration of labor disputes, hereinafter, LDC) is set up in the organization and the employee is a member of the trade union, consideration of the dispute in the LDC is mandatory before going to court. Employment-related disputes are considered in the court in the order of action proceedings. To initiate a case of such category a claimant must file a lawsuit to the appropriate court and attach the necessary documents to it. The state fee is not paid in this case even if the judgment is not made in favor of a claimant. 

3.5. Can employers control an employee's use of social media both inside and outside the workplace?

During working hours, the employer has the right to control the employee's use of social media, as the employee has to perform his/her work duties during working hours at the workplace. In other words, the employee is not allowed to use social media during working hours, unless his/her duties are directly related to social media. The use of social media outside working hours and the workplace is not controlled by the employer.

(4) Court Practice and Procedure

4.1. Which courts or tribunals hold jurisdiction over employment-related complaints, and what is their composition?

In the Republic of Belarus, there are no courts and tribunals specializing exclusively in the consideration of labor disputes, including employment-related. All individual labor disputes are resolved by the courts of general jurisdiction. 

The composition of the court varies depending on which court is considering the relevant claim. In the court of first instance, a labor dispute is resolved by a judge alone, in the court of the 2nd and 3rd instance - collectively.

4.2. What procedures govern employment-related complaints? Is conciliation obligatory before proceeding with a complaint, and is there a fee for employees to submit a claim? 

There is no mandatory conciliation before consideration of employment-related disputes in the court. It is also not required to claim the employer before going to the court. But if a labor Dispute Commission (non-judicial body for consideration of labor disputes, hereinafter, LDC) is set up in the organization and the employee is a member of the trade union, consideration of the dispute in the LDC is mandatory before going to court. 

Employment-related disputes are considered in the court in the order of action proceedings. To initiate a case of such category a claimant must file a lawsuit to the appropriate court and attach the necessary documents to it. 

The state fee is not paid in this case even if the judgment is not made in favor of a claimant.

4.3. What is the typical duration for resolving employment-related complaints? 

The court of the 1st instance must consider labor disputes within 1 month from the date of initiation of proceedings (par. 2 of Art. 158 of the Code of Civil Procedure of the Republic of Belarus).

4.4. Is it possible to appeal against a decision at the first instance, and if so, how long does such an appeal usually take? 

A judgment of the court of the 1st instance that has not entered into force may be appealed to the Judicial Collegium for Civil Cases of the relevant regional court or Minsk City Court. A judgment that has entered into force may be reviewed in order of supervision first by the Presidium of the Supreme Court of the Republic of Belarus, then - by the Plenum of the Supreme Court of the Republic of Belarus. 

An appeal against a judgment of the court of the 1st instance that has not entered into force, including a judgment on a labor dispute, must be considered within 1 month from the date of its receipt by the court (par. 1 of Art. 416 of the Civil Procedure Code of the Republic of Belarus). In case of further appeal of a judgment of the court of first instance together with a judgment of the appeal instance to the Presidium of the Supreme Court of the Republic of Belarus, the term of consideration of the case should not exceed 1 month, and to the Plenum of the Supreme Court of the Republic of Belarus - 3 months from the date of its receipt by the court (par. 8 of Art. 445 of the Civil Procedure Code of the Republic of Belarus).

(5) Work Permits 

5.1. What are the restrictions or limitations placed on individuals holding a work permit in terms of job duties, employer changes, or duration of stay? 

Job duties in employment do not depend on the citizenship of employees, all employees are guaranteed equal labor rights, and limitations apply only to the procedure of registration of the employee for employment and the possibility of occupying certain positions. 

In case of a change of employer, a foreign worker must obtain a new special permit regardless of the previous permit. Foreign citizens are subject to certain limitations in the positions and spheres of activity (civil service, work related to access to state secrets). 

The duration of stay (temporary residence) in the country depends on the period for which the special permit is issued. A special permit is issued, as a rule, for a period not exceeding 1 year, respectively, the term of a temporary residence permit - up to 1 year. The special permit may be extended for the same period, and the temporary residence permit is also extended for 1 year. A 2-year term of the special permit is valid for highly qualified workers.

5.2. What are the requirements for obtaining a work permit? 

A special permit is issued to foreign citizens to work in Belarus. An application for the issuance of a special permit is submitted by the employer to the citizenship and migration unit at the employer's location (place of residence) in the prescribed form with the following documents attached: 

• a copy of the passport or other document replacing it, intended for traveling abroad;
• a document on payment of the state fee.

The special permit is issued based on the conclusion of the labor, employment, and social protection bodies on the possibility of the foreigner carrying out labor activity. To obtain the conclusion, the employer is obliged to place a vacancy in the republican vacancy bank on the website of the state employment service, which must be there for at least 15 working days. It is impossible to hire a foreign citizen before the expiration of this period. 

Based on the documents submitted by the employer, the unit for citizenship and migration applies to the bodies for labor, employment, and social protection at the location of a free workplace (vacancy) with a request to obtain an opinion on the possibility of a foreigner to perform labor activities under a labor contract in the Republic of Belarus. In the presence of a positive conclusion, the citizenship and migration department issues a special permit.

5.3. Are there any recent changes or updates to work permit regulations or policies that individuals or employers should be aware of? 

From 01.07.2023 a new version of the Law on Labor Migration came into force. Since that date, the procedure of issuing a permit to attract a foreign labor force to the Republic of Belarus has been abolished. 

When using the labor of foreigners, the employer is obliged to:

• obtain a special permit for the right to engage in labor activity for each foreigner;
• conclude a fixed-term labor contract with each immigrant worker (previously, the type of labor contract was not specified);
• notify the Citizenship and Migration Department in the prescribed form in writing or in the form of an electronic document about the conclusion and termination of the labor contract with the worker (previously it was necessary to register the labor contract with the Citizenship and Migration Department).

The list of foreigners, who don't need to obtain a special permit and with whom any type of labor agreement (e.i., a contract) can be concluded, has been adjusted. In particular, it is supplemented with foreigners engaged in professions of workers (positions of employees) included in the list of professions of workers (positions of employees) for which foreigners are engaged without taking into account restrictions on the protection of the national labor market. The list will be approved annually by February 1 of the year following the expired calendar year.

5.4. Are there specific industries or occupations that have different requirements or exemptions for obtaining a work permit? 

In Belarus, for certain special legal regimes and professions, there are other requirements for obtaining a special permit. For example, residents of the Belarus Hi-Tech Park, managers, and specialists who are highly qualified employees of the Great Stone China-Belarus industrial park are not required to obtain a special permit. In addition, foreigners employed in the professions of workers (positions) included in the list approved by The Ministry of Labor and Social Protection are not required to obtain a special permit.

5.5. What is the ratio of foreign and local labor? 

According to the statistics for 2022, there were 11 thousand foreign workers in Belarus, which amounted to about 0.26% of the total number of persons involved in the economy.

(6) Tax

6.1. What are the legal obligations and requirements regarding the individual income tax paid by employers? 

As a general rule, employers are obliged to pay mandatory insurance contributions for pension insurance in the amount of 35% of the salary: 29% of mandatory insurance contributions for pension insurance (28% at the expense of the employer and 1% at the expense of the employee) and 6% for social insurance. There is a determined amount of payments above which contributions to the Social Security Fund are not charged. This amount is 5 times the average salary of employees in the country, for the month, prior to the month for which compulsory insurance contributions are paid.

6.2. What is the percentage of withholding tax? 

As a general rule, an income tax rate of 13% applies to a salary. At the same time, tax legislation provides benefits to support employees whose salaries do not exceed a certain level. 

For example, if the amount of income is less than 1054 Belarusian rubles per month (which is approximately 300 euros), a tax deduction of 174 Belarusian rubles (which is approximately 50 euros) is applied, and income tax is charged on the difference between the income and the tax deduction, i.e. for the income 1054 Belarusian rubles, on the amount of 880 Belarusian rubles (which is approximately 250 euros). As mentioned above, an additional 1% of mandatory pension insurance contributions is withheld from the salary.

 

Authors:

Maxim Lashkevich, Oksana Shakhlai, Alexandra Vasilyeva.