GILS Employment Law: Tajikistan

TAJIKISTAN

(1) Maternity and Family Leave Rights

1.1. How long is the duration of maternity leave?

The duration of maternity leave in Tajikistan is seventy calendar days before childbirth and seventy (in case of complicated childbirth – eighty-six days or birth of two or more children — one hundred and ten days) calendar days after delivery

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

When returning to work after parental leave, the parent has rights for previous work and, in cases stipulated by the Code, agreement and collective bargaining agreements, and previous salary.

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

Leave to care for a child until the child reaches the age of three years shall also be granted to fathers and the following persons: 

• a parent - one bringing up a child;
• a grandparent or other legal representative bringing up a child without parental care; an employee who has adopted a newborn child (children). 

However, this leave will be without pay and may be used in full or in installments based on the employee's written request. 

During this leave, the employee will retain his/her place of employment (position).

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

There is no other additional leave except parental leave to care for a child up to the age of three years.

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

In compliance with the law, employers are required to grant part-time working hours to pregnant women and individuals with family responsibilities, including those with children under the age of fourteen or with disabled children, upon receipt of a written request.

(2) Termination of Employment

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

In order to dismiss an employee on the employer's initiative, the employer must have reasonable grounds, as outlined in the Labor Code of Tajikistan. 

Furthermore, in certain cases specified by the Labor Code, the employer is required to notify the employee in advance of impending dismissal: 

• when the company is closing or reducing its workforce, the employer must provide at least two months' notice;
• when an employee lacks the necessary qualifications or is unable to perform their job due to health issues, the employer must provide at least one month's notice.

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

In the Republic of Tajikistan, the concept of "garden leave" does not exist. Instead, upon termination of employment by the employer, there is a notification period of two months. During this period, the employee is required to work four days per week, with one day allotted for seeking out new job opportunities.

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?

The employer is obligated to provide valid reasons, as outlined in the Labor Code of Tajikistan, for initiating the dismissal of an employee. These reasons must be reasonable and in accordance with the provisions set forth in the 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. 

When a company has a trade union committee or other employee representative, the employer must seek their consent before dismissing an employee on the employer's initiative. This requirement ensures that proper procedures are followed and that employee rights are respected.

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

Yes, the termination of an employment contract initiated by the employer with a pregnant woman, women, and individuals with family responsibilities – including those caring for children under the age of three or raising a disabled child – is prohibited, except in cases of employer liquidation, where termination is allowed with mandatory re-employment.

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?

In order to dismiss an employee on the employer's initiative, the employer must have reasonable grounds for this, as provided by the Labor Code of Tajikistan.

In specific instances defined by the Labor Code, employees terminated by the employer receive a one-time severance payment equivalent to at least three times their average monthly salary.

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

When dismissing an employee, the employer must comply with the following requirements: 

• Notify the employee (in the cases provided for);
• Obtain the trade union's consent to his/her dismissal (if the employer has established one and if such an obligation is stipulated by a collective bargaining agreement);
• Issue a dismissal order and announce it to the employee against signature;
• Make all payments due to the employee from the employer on the day of dismissal, including for unused vacation;
• Issue a labor book.

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

If an employee believes they have been wrongfully or unlawfully dismissed, they may apply to the court for reinstatement.

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

The employer has the right to settle a dispute between him and the employee both before and after the initiation of proceedings. If the employer voluntarily settles the dispute before the proceedings are initiated in court, the employee has the right to withdraw the statement of claim, and after the proceedings are initiated, the employee has the right to withdraw the claim.

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

In the event of a threat of mass employee dismissal, the employer must, in coordination with employee representatives and the authorized state labor and employment authority, implement special measures, including: 

• limiting or temporarily halting the hiring of new employees and dismissing part-time workers;
• restricting the use of overtime;
• implementing changes to working conditions;
• temporarily suspending production or work activities;
• implementing phased employee dismissals;
• any other measures specified in agreements or collective bargaining agreements.

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 an employer fails to fulfill its obligations, employees have the right to seek reinstatement through court intervention. If reinstatement isn't feasible, they are entitled to claim compensation equal to three times their wages.

(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?

The relationship between employees and employers is governed by the Labor Code and the Law on Protection of Personal Data. The Labor Code does not address the issue of the transfer of personal data, nor does it explicitly permit or prohibit such transfers. Therefore, the transfer of personal data is subject to the provisions of the Law on Protection of Personal Data. According to this law, the transfer of personal data is permitted provided that the employee consents to it.

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

Yes, employees have the right to access their personal data, which includes obtaining copies of records that contain the employee's personal data, with certain exceptions as provided by the laws of the Republic of Tajikistan.

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

The issue at hand falls outside the scope of labor legislation, and as such, is not explicitly prohibited. It is important to note, however, that access to criminal records is strictly limited to the individuals to whom they pertain and are not disclosed to third parties.

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

The issue at hand falls outside the scope of labor legislation and, as such, is not explicitly prohibited. In practice, most emails, hosted on domains such as Gmail or Hotmail, are accessible to and monitored by an organization's IT department. Similarly, computer systems are routinely monitored and controlled. The monitoring of calls is permissible only in instances where the organization provides the SIM card, and solely to the extent necessary to ensure that employees do not misuse it for personal matters.

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

In the workplace, employers have the authority to restrict access to certain websites, including social media platforms, which can be observed in practice in some organizations. However, outside of the workplace, employers do not have the right to control employees' use of social media.

(4) Court Practice and Procedure

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

In Tajikistan, there are no specialized courts or tribunals exclusively dedicated to handling labor disputes, including those concerning employment. Instead, individual labor disputes are addressed by courts of general jurisdiction. 

The composition of the court varies depending on the stage of the legal process. In the court of first instance, a single judge resolves a labor dispute, while in the court of appeal and during supervisory review instances, a panel of judges collectively handles the matter.

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? 

In Tajikistan, there isn't a mandatory conciliation procedure for employment-related disputes, nor is there a requirement to submit a claim to the employer before proceeding to court. However, a company has the option to establish a Conciliation Commission for labor disputes. 

Individual labor disputes may be addressed either by the conciliation commission or the courts. The conciliation commission handles these disputes upon request from the involved parties. 

Alternatively, the parties involved in a labor contract can choose to directly approach the courts to resolve individual labor disputes. 

Typically, employment-related disputes in Tajikistan are resolved in court through a claim procedure. To initiate such a case, an individual must submit a statement of claim to the relevant court along with the necessary documents. Importantly, no state duty is payable, regardless of whether the court's decision favors the plaintiff or not.

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

In accordance with the Civil Procedure Code of Tajikistan, cases on claims for reinstatement to work should be considered by the court of first instance not later than one month from the date of acceptance of the statement of claim for proceedings

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 from a court of first instance, which has not yet become legally binding, can be appealed in the court of cassation. A judgment from a court of cassation that has become legally binding may undergo review through the supervisory-instance procedure. 

According to the Code of Civil Procedure of Tajikistan, an appeal against a first-instance court judgment that has not yet become legally binding, including those issued in disputes arising from labor relations, must be reviewed by the court of cassation within one month of its submission to the court. If there is a subsequent appeal against the judgment of the first-instance court along with the ruling of the cassation instance in the supervisory instance, the case should be considered within a maximum period of two months.

(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? 

There are no restrictions or limitations. Should there be a change of employer or acquisition of a new position, the individuals are required to obtain a new work permit.

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

In order to obtain a work permit, applicants are required to submit a comprehensive set of documents. This set must include: an application form; the original and copies of the passport or other identity documents; a copy of the visa; a copy of the registration card; the original and a copy of the duty payment receipt; two color photographs, sized 3x4 cm; an HIV/AIDS certificate, utilizing form 029; and copies of either the invitation or the employment contract, alongside the taxpayer identification number.

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

No.

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

Yes, the following individuals are exempt from obtaining work permits:

• individuals serving in foreign military units stationed within the Republic of Tajikistan;
• employees and those engaged in activities within diplomatic missions and international organizations;
• individuals in the Republic of Tajikistan for educational purposes;
• tourists entering through travel agencies on tourist visas;
• individuals on business trips, including athletes participating in competitions, artists performing on tours by official invitation of state bodies or organizations;
• investors and depositors investing a minimum of USD 500,000 within one year from the date of state registration;
• representatives of foreign media accredited in the Republic of Tajikistan;
• individuals engaged in professional activities within religious associations officially registered in the Republic of Tajikistan;
• individuals arriving in the Republic of Tajikistan for the purpose of providing humanitarian aid and charity;
• executives and employees of foreign firms operating under intergovernmental or intergovernmental investment and concessional loan agreements.

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

It is an established, though unwritten, norm that the staffing ratio adheres to an 80:20 distribution between local and foreign employees.

(6) Tax

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

The employer withholds from the employee salary the withholding tax and pension contributions.

6.2. What is the percentage of withholding tax? 

The rate is 12% from the main place of work and 15% from other sources (e.g., part-time).

 

Authors:

Kamoliddin Mukhamedov, Bahodur Nurov.