GILS Employment Law: Ukraine

UKRAINE 

(1) Maternity and Family Leave Rights

1.1. How long is the duration of maternity leave?

Maternity leave of 126 calendar days includes two periods - before and after childbirth. Pre-natal leave lasts 70 calendar days. The leave after childbirth is 56 calendar days (70 calendar days - in case of birth of two or more children and in case of complications of childbirth), starting from the day of childbirth. 

At the request of the woman and in the absence of medical contraindications, part of the 70 calendar days of leave provided for before childbirth may be transferred and used by the partially or fully after childbirth, starting from the day of childbirth. In this case, the total duration of the leave may not exceed 126 calendar days (140 calendar days in case of the birth of two or more children and in case of complications of childbirth).

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

The employee retains his place of work. 

Women who have children under the age of one and a half are granted with additional breaks for feeding the child. These breaks are provided at least every three hours and last at least thirty minutes each. If there are two or more children, the duration of the break shall be at least one hour. 

It is prohibited to refuse to hire women and reduce their salaries for reasons related to pregnancy or having children under the age of three, and for single mothers - for having a child under the age of fourteen or a child with a disability. 

The dismissal of pregnant women and women with children under the age of three, single mothers with a child under the age of fourteen or a child with a disability at the initiative of the employer is prohibited, except in cases of complete liquidation of an enterprise, institution or organisation, when dismissal with compulsory employment is allowed.

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

Fathers are granted a one-time paid childbirth leave of up to 14 calendar days (excluding holidays and non-working days), which is granted no later than three months after the child's birth to such employees.

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

All the rights in regard to parental leave are covered by the Labor Code of Ukraine and Law of Ukraine on Holidays.

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

Any employee may be granted flexible working hours upon written agreement with the employer.

(2) Termination of Employment

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

This depends on the grounds for dismissal. 

The statutory minimum notice period is two months if the case involves redundancy or company liquidation. 

In certain cases (e.g. where there has been a single gross violation of employment duties), notification is not required. 

Also, dismissal without cause and without notice is possible for employees qualifying as company officials (e.g. director) if their corporate mandate is terminated.

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

The Labor Code of Ukraine does not include such a concept. At the same time this concept can be implemented under the employment agreement.

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 there are no violations and legal requirements are met, the employee can defend himself/herself by all instances, including legal proceedings. The employee is considered dismissed from the moment the order is issued in accordance with the Labor Code of Ukraine. 

In certain cases the law requires the consent of the trade union or other representative body of employees to be obtained upon dismissal by the employer, if such a body has been established at the enterprise.

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

Several categories of employees cannot be dismissed by an employer without prior consent. These protected employees include: pregnant women; women with children under the age of 3, or under the age of 6 if a registered medical practitioner certifies that home care is necessary; single parents or the legal guardians of a child under the age of 14 or a handicapped child. 

The law only allows protected employees to be dismissed if the employer is liquidated without legal succession. Under these circumstances, the law requires that they be paid their average salaries for three months following the termination.

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?

An employer can unilaterally terminate an employee with cause in the following cases: 

• systematic unjustified failure to fulfil employment obligations;
• unjustified absence from work for more than three hours during one day;
• appearance at work while under the influence of alcohol or drugs;
• misappropriation of property;
• a single gross violation of employment obligations;
• actions of a company head causing delayed or reduced payment of wages;
• real or potential conflict of interest;
• immediate subordination to a related party contrary to the Ukrainian law “On Preventing Corruption”;
• repeated violation of the requirements of the legislation in the field of licensing, on the issuance of permits or in the field of administrative services;
• actions of an employee entrusted with company assets (cash or property) that result in the loss of the employer’s trust; or
• immoral conduct.

An employer can terminate an employee without cause in the following cases: 

• changes in organisation of work and production (redundancy);
• employee unsuitability for the job or position due to lack of qualification or poor health conditions;
• reinstatement of an employee who previously occupied the position;
• absence from work due to sickness for more than four continuous months;
• recruitment by the army or mobilization of an employer-natural person during a special period;
• the employee’s unsuitability for the job or position is discovered within his / her probation period; or
• work cannot be provided to the employee due to the destruction of the employer’s property, production tools, technical or organisational conditions as a result of combat actions during martial law. 

In any case of dismissal, an employer must pay an employee all payments due under an employment agreement (salary and compensation for any of the employee’s annual vacation accumulated but unused during the whole term of employment).

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

The decision to reduce the number of employees or staff. 

The Labor Code of Ukraine provides for the possibility of terminating an employment contract at the initiative of an employer or an authorized body in the event of bankruptcy, reorganization of an enterprise, or reduction in staff. The first stage ends with an order on implementing changes to the staffing table. The document lists the positions, categories and number of employees without indicating the names to be excluded from the staff list. 

The stage of determining the employees who fall under the reduction. 

Changes are made to the staffing table according to the order of the legal entity. The employer must take into account the pre-emptive right to remain employed. (according to article 42 of the Labor Code of Ukraine). A special commission may be created to determine the right to stay employed.

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

An employee has the right to apply to the court if he/she disputes the dismissal within one month from the date of handing him/her a copy of the dismissal order or from the date of issue of the work book or from the date of providing the employee with in connection with his dismissal, information about his/her employment (Article 233 of the Labor Code). 

If the claim is satisfied, the employee is entitled to:

1. Reinstatement in employment, changing the wording of the reasons for dismissal, formalising labour relations with an employee who performed work without concluding an employment contract, and establishing the period of such work; 

2. Payment for forced absenteeism in the event of a delay in the execution of a decision to reinstate an employee; 

3. Compensation for moral damages by the employer.

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

An employer can establish a labor dispute commission upon its initiative or initiative of employees (the representative body of employees). 

The labor dispute commission is a mandatory primary body for consideration of labour disputes arising at enterprises, institutions and organisations, except for certain categories of disputes. 

A labour dispute between an employee and an employer, regardless of the form of an employment agreement, may be settled through mediation in accordance with the Law of Ukraine "On Mediation", taking into account the specifics provided for in this Code.

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

If the dismissal involves mass dismissal, the owner or his authorised body, an individual who uses hired labour, shall notify the State Employment Service of the planned dismissal of employees. 

According to the law, mass dismissal is considered to be: 

1. dismissal of 10 or more employees from an employer with 20 to 100 employees; 

2. dismissal of 10% or more of employees by an employer with 101 to 300 employees; 

3. dismissal of 30 or more employees from an employer with 301 to 1000 employees; 

4. dismissal of 3 or more % of employees from an employer with 1001 or more employees.

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? 

Employees have the right to protect their rights by appealing to the State Employment Service, the prosecutor's office, or the court.

(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?

Personal data shall be transferred to foreign parties only if the relevant state ensures proper protection of personal data in cases established by law or an international agreement of Ukraine. 

Personal data may also be transferred to foreign parties in the following cases: 

1. the personal data subject provides explicit consent to such transfer; 

2. the need to conclude or perform a transaction between the personal data owner and a third party in favor of the personal data subject; 

3. the need to protect the vital interests of personal data subject; 

4. the need to protect the public interest, establish, fulfil and enforce a legal claim;

5. provision by the personal data owner of appropriate guarantees of non-interference in the personal and family life of the personal data subject.

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

There is no direct legal provision on obtaining copies, however, in accordance with Article 8 of the Law of Ukraine "On Personal Data Protection", an employee has the right to know about the sources of collection, location of his/her personal data, the purpose of their processing, location or place of residence (stay) of the owner or manager of personal data or to give a corresponding order to obtain this information to persons authorised by him/her, except in cases established by law, as well as to access his/her personal data.

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

Such authorities are not expressly provided for by law, but there are no corresponding prohibitions. Criminal record checks are common practice in Ukraine.

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

Such issues are reflected in the employer's local regulations (code of ethics and behavior, rules for using the Internet, based on internal policy). If these rules do not violate the law and are approved by the employer's order and informed to the employees, they become mandatory for each employee.

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

Such issues are reflected in the employer's local regulations (code of ethics and behavior, rules for using the Internet, based on internal policy). If these rules do not violate the law and are approved by the employer's order and informed to the employees, they become mandatory for each employee.

(4) Court Practice and Procedure

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

There are no courts and tribunals specializing exclusively in the consideration of labor disputes in Ukraine. All 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 one or three judges, in the court of appeal and Supreme Court - 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? 

The Labour Code provides for a list of labour disputes that may be referred to labour dispute commissions or directly to the courts. 

If the subject of the court dispute is the protection of labour rights, the court may, by its ruling at the request of the party, postpone or defer payment of the court fee for a certain period, but not longer than until the court decision is made.

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

The duration may take 2 to 24 (or more) months depending on the complexity of the case and activeness of the parties.

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? 

It is possible to appeal to the court of appeal (during 30 days) and to the Supreme Court (during 30 days). The consideration may take 2 to 24 (or more) months depending on the complexity of the case and activeness of the parties.

(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? 

It is only allowed to work in the specific entity indicated in a work permit and only within the position stated in the permit. Employer changes require obtaining a new work permit. 

As a general rule, work permit duration is equal to the duration of an individual's temporary stay or their employment contract, but no more than one year. Work permits can be prolonged additionally.

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

Foreign citizens must obtain the work permit to work officially in Ukraine. The company-employer (or the private entrepreneur) files the application form to the local employment center to get for the potential employee the work permit in Ukraine. 

Work permit in Ukraine does not give the right to the foreign citizen to choose the place of work and position at his/her discretion. One work permit is for one position, and the employer keeps this document. 

Ukrainian legislation stipulates several categories for foreign employees. Each category has the list of documents required for the work permit application. To apply for the work permit, the employer needs to define his/her potential employee group. 

There are the following categories: 1) regular foreign employees; 2) special categories of foreign employees: foreigners-founders of enterprises; IT professionals; foreign high-paid professionals; graduates of the TOP-100 universities in a world ranking; seconded foreign employees; foreigners submitting documents for recognition as refugees or as people who need additional protection. 

Special categories of foreign employees in Ukraine have some privileges considering salary rate and work permit validity term.

The common list of documents required for the work permit application includes the following:

• a certified translation of a foreigner’s passport into the Ukrainian language;
• foreigner’s photo (size 3.5*4.5 cm);
• a draft of a future employment contract. 

The list of specific documents is as follows: 

• a certified translation of the relevant diploma (for a graduate from one of the TOP-100 universities in a world ranking);
• a copy of the secondment agreement between Ukrainian and foreign economic entities (for seconded foreign employees).

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

In 2022, the special requirements ( 5 minimum wages for foreigners and stateless persons employed by public associations, charitable organisations and educational institutions, and 10 minimum wages for all other categories of employees) for the employer to comply with the conditions for payment of wages upon obtaining a work permit were cancelled.

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

The law specifies a list of foreigners who don’t require a work permit for employment in Ukraine: foreigners with a permanent residence permit; employees of representative offices of foreign companies in Ukraine; employees of foreign accredited media; participants of international technical assistance projects; teachers and scientists invited for work by higher education institutions; representatives of foreign naval (river) fleets and airlines serving such companies in Ukraine; foreigners who have refugee status or are recognized as people who need additional protection or granted temporary protection in Ukraine; professional athletes; artists and art workers; clerics invited by religious organizations to carry out canonical activity. It takes 7 business days for granting the work permit and 3 business days for extension of the work permit validity term in Ukraine.

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

Not established.

(6) Tax

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

The standard tax rate of 18% applies to income received as salary and other benefits under employment and civil agreements, foreign income, and other income not covered elsewhere. 

Military contribution at 1,5% is levied on the income that is subject to personal income tax. The tax base for the calculation of military contribution is the same as for personal income tax.

6.2. What is the percentage of withholding tax? 

Withholding tax at a rate of 15% applies to the majority of passive income payments to non-residents, unless an exemption or reduced rate is provided under a DTT.

 

Author:

Anton Maksymov.