Attorney belongs to the category of employed population, and this excludes the possibility of granting him unemployed status - SC GC

An attorney, whose right to practise law has not been suspended or terminated, is a person who carries out an independent professional activity (provides himself with work independently) and is classified as an employed person. This excludes the possibility of granting him the status of unemployed person.

This was emphasised by the Grand Chamber of the Supreme Court in the case of an action brought by a municipal employment agency against an attorney for the recovery of unemployment benefits.

The defendant in this case applied to the municipal employment agency for unemployment status and unemployment benefits. He was granted unemployment status and unemployment benefits.

Subsequently, the municipal employment agency found out that during the period of his registration with the employment centre as unemployed, the defendant was registered with the Bar Council of Kyiv region and had the right to practise as an individual attorney. After that, the municipal employment agency terminated the defendant's registration as unemployed and stopped paying him benefits. In addition, the employment agency ordered the defendant to return the accrued and paid benefits, of which the defendant was notified, but did not voluntarily return the funds.

The court of first instance dismissed the claim of the municipal employment agency. However, the court of appeal upheld the claim.

The Grand Chamber of the Supreme Court, agreeing with the position of the court of appeal, held that a person who has obtained a certificate of the right to practise law has the right to work and to receive income from such work, acquires the status of a self-employed person and is obliged to pay a single contribution to the mandatory state social insurance scheme. At the same time, the legislator does not deprive the attorney of the status of a person engaged in independent professional activity for the period of non-receipt of earnings (income) and does not exempt the attorney from the obligation to pay this single contribution.

At the same time, an attorney has the right to terminate his or her practice of law at any time at his or her own discretion and without giving specific reasons. After that, he or she loses the status of a person engaged in independent professional activity and, accordingly, a self-employed person, since such an attorney is not entitled to practise law (Article 31 of the Law of Ukraine ‘On the Bar and Practice of Law’). The right to practise as an attorney may also be terminated under part 3 of Article 32 of this Law. Information on the suspension or termination of the right to practise as an attorney is entered into the Unified Register of Attorneys of Ukraine.

In such cases, and in the absence of any other form of employment and the inability to exercise the right to work in any other way, such a person may acquire the status of unemployed.

Thus, in accordance with Article 4 of the Law of Ukraine ‘On Employment of the Population’, an attorney whose right to practise law has not been suspended or terminated is a person who carries out independent professional activity (provides himself with work independently) and is classified as employed, and this excludes the possibility of granting him/her unemployed status.

The Grand Chamber of the Supreme Court took into account the fact that the case file did not contain any information on the suspension or termination of the defendant's right to practise law. In view of this, he could not be recognised as unemployed, and the unemployment benefit paid to him is subject to recovery from him on the basis of Part 3 of Article 36 of the Law of Ukraine ‘On Compulsory State Unemployment Insurance’.

The Grand Chamber of the Supreme Court also rejected the arguments of the cassation appeal that the defendant did not receive any earnings (income) from the practice of law and was therefore entitled to unemployment benefits, since the right to practise law made it impossible to grant him unemployment status and the corresponding benefits.

Resolution of the Grand Chamber of the Supreme Court of 28 August 2024 in case No. 761/38813/21 (proceedings No. 14-76цс24) - https://reyestr.court.gov.ua/Review/121571331.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.