The Grand Chamber of the Supreme Court Reviewed the Case of Suspension from Work Due to Lack of COVID-19 Vaccination

In December 2021, an employee of Ukrzaliznytsia JSC was suspended from work for not having been vaccinated against COVID-19. She challenged this order in court, asking for it to be canceled, for her to be reinstated in her position, and for her salary to be recovered.

The court of first instance upheld the claim on the grounds that there were no laws in Ukraine providing for the right of employers to suspend employees who refused to be vaccinated against COVID-19. The court of appeal overturned the decision and dismissed the claims. The plaintiff challenged the court of appeal's judgment in the Supreme Court. The Civil Cassation Court within the Supreme Court referred the case to the Grand Chamber of the Supreme Court.

The Grand Chamber of the Supreme Court pointed out that the criteria for compatibility of a measure of interference with the right to respect for private life with the guarantees of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms were as follows:

• whether such interference was based on a national law that meets the quality requirements (accessibility, clarity and comprehensibility, predictability of application to avoid the risk of arbitrariness);
• whether such interference pursued a legitimate goal, which follows from the content of paragraph 2 of the said article;
• whether the measure in question is urgently needed and proportionate to that aim (necessary in a democratic society), i.e. whether it is the least burdensome measure in respect of a particular person that allows achieving the aim set out in Article 8(2) of the Convention.

An interference will constitute a violation of the guarantees of Article 8 of the Convention if it does not meet any of the above criteria.

The Grand Chamber of the Supreme Court stated that the application of the provisions of Ukrainian legislation should not lead to unlawful and disproportionate interference with the rights of participants in civil, in particular labor, legal relations.

After analyzing the legislation and bylaws, the Grand Chamber of the Supreme Court noted that the suspension from work (performance of work) of certain categories of employees who refuse or evade mandatory preventive vaccinations against COVID-19 was provided for by law. The provisions of the laws of Ukraine regarding such suspension are clear, straightforward and, if the procedure set forth therein is followed, allow the employee to understand the consequences of his or her refusal or evasion of such vaccination unless there are medical conditions found upon the results of a medical examination conducted prior to the suspension, and the employer to determine the procedure for acting in relation to such employee.

With regard to the legality of non-payment of wages to an employee during the period of suspension from work, the Grand Chamber of the Supreme Court stated the following. The current legislation does not provide for an employer's obligation to pay an employee's salary for the period of his or her suspension from work due to refusal or evasion of mandatory preventive vaccinations against COVID-19. At the same time, the collective and/or employment agreement or the employer's decision may provide for other conditions.

If the employee's suspension from work was unlawful, the employer is obliged to pay the employee all statutory payments.

The Grand Chamber of the Supreme Court has no doubt that Ukraine, like other countries, has experienced significant difficulties in the healthcare sector. According to statistics, on average, 7168 people died of COVID-19 in Ukraine per month in 2021. This necessitated the state to take certain restrictive measures related, in particular, to interference with the right to respect for private life in order to protect public health from a disease that could pose a serious threat. Such a goal is legitimate in accordance with paragraph 2 of Article 8 of the Convention. By making vaccination against COVID-19 mandatory for certain categories of employees as a prerequisite for continuing to perform their work duties, the state was trying to achieve this goal.

The Grand Chamber of the Supreme Court also found out whether the plaintiff's suspension from work was urgently necessary and to what extent such suspension contributed to the achievement of the legitimate goal.

The Grand Chamber of the Supreme Court noted that suspension of a person from work, which may result in deprivation of his/her earnings without an individual assessment of his/her behavior, only on the grounds that he/she works at a certain enterprise, institution, or other organization, may be justified if the grounds are very convincing. In each case, it is necessary to assess whether it was possible to achieve the legitimate goal by applying measures less severe than suspension from work after an individual assessment of the employee's work duties, including an assessment of the objective need to personally contact other people in the course of their performance, the possibility of organizing remote or home work, etc.

The Grand Chamber of the Supreme Court stated that in each particular case, in order to decide whether there are grounds for mandatory vaccination of an employee against COVID-19 and, accordingly, for suspending the employee from work, one should be guided not only by the List of Professions, Industries and Organizations Whose Employees Are Subject to Mandatory Preventive Vaccination, approved by Order of the Ministry of Health of Ukraine No. 2153, but also by an assessment of the threat that an unvaccinated employee may potentially pose at work. In particular, it is necessary to take into account such circumstances as:

• the number of social contacts of the employee in the workplace (direct/indirect);
• mode of work organization (remote/home-based), including the possibility of establishing such a mode of work for an employee who has not been vaccinated;
• working conditions of the employee that increase the likelihood of contracting COVID-19, including the need to go on domestic and foreign business trips;
• employee’s contact with products that will be used (consumed) by the public.

The court of appeal disregarded these circumstances and did not take into account that the defendant did not justify the need to suspend the plaintiff by the fact that she, while working as a duty officer at a railroad crossing, created threats that would require such a severe measure that deprived the plaintiff of her income.

In its judgment of April 17, 2019, in case No. 682/1692/17, the Civil Cassation Court within the Supreme Court concluded that the principle of the importance of public interests prevails over the personal rights of a person, but only when such interference has objective grounds and is justified. The Supreme Court made a similar conclusion in a number of other judgments.

The Grand Chamber of the Supreme Court found that when considering such cases, courts must take into account that public interests prevail over personal interests, but only when interference with the relevant rights of a person has objective grounds (provided for by law, pursues a legitimate goal, is urgently necessary and proportionate to such a goal).

The Grand Chamber of the Supreme Court upheld the cassation appeal in part, reversed the decision of the court of appeal, and changed the decision of the court of first instance, setting out its reasoning in the wording of this judgment.

Resolution of the Grand Chamber of the Supreme Court of December 14, 2022 in case No. 130/3548/21 (proceedings No. 14-82цс22) - https://reyestr.court.gov.ua/Review/109075195.

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