Supreme Court judge analyses current case law on changes in labour legislation

Within the framework of the Council of Europe HELP Programme event ‘Labour rights as human rights and introduction to the European Social Charter’, Judge of the Civil Cassation Court of the Supreme Court Olena Bilokon highlighted key aspects of the case law formed on the basis of changes to labour legislation in accordance with the Laws of Ukraine ‘On the Organisation of Labour Relations under Martial Law’ and No. 2352-IX of 1 July 2022 ‘On Amendments to Certain Legislative Acts of Ukraine on Optimisation of Labour Relations’.

During her speech, the judge cited the case law on the application of the rules on transferring employees to another job and changing the essential working conditions of an employee during the legal regime of martial law. She specifically focused on the amendments to Article 233 of the Labour Code of Ukraine, which limit the time period for applying to the court for protection of the right to remuneration, and reminded that the Constitutional Court of Ukraine is currently reviewing the compliance of these amendments with the Constitution of Ukraine at the initiative of the judiciary.

One of the novelties of the wartime labour legislation is the suspension of an employment contract, which does not entail termination of employment, but provides for the temporary cessation of employment by the employer and the temporary cessation of work by the employee under the concluded employment contract.

According to the speaker, when considering such cases, the courts have found that suspension of an employment contract with an employee is a right, not an obligation, of the employer. The main question that arises in court practice concerns the grounds for applying this rule. In order to exercise the right to temporarily suspend an employment agreement with an employee, the employer must be in circumstances where it cannot provide the employee with work and the employee cannot perform the work. For example, in circumstances where the majority of employees of healthcare facilities continue to provide medical services, the courts have not agreed that employers have a legitimate reason to suspend the employment contract with some of these employees. At the same time, the mere fact that the number of patients decreased after the introduction of martial law in Ukraine did not indicate that the employer was unable to provide doctors with jobs.  

A separate issue in the case law was the question of remuneration for the period of unlawful suspension of an employment contract.

Article 13 of the Law of Ukraine ‘On the Organisation of Labour Relations under Martial Law’ provides that all losses related to the suspension of an employment contract shall be borne by the aggressor state. Therefore, if the courts found that there were legitimate grounds for suspending an employment contract, they dismissed claims for recovery of the average salary from the employer in favour of the employee during the suspension. However, if the courts found that the employee's labour rights had been violated as a result of the unlawful suspension of the employment contract, in order to restore the employee's labour rights, the courts granted the employee's claims for the recovery of wages for the period of the unlawful suspension of employment. In doing so, the courts applied Article 235 of the Labour Code of Ukraine, which provides for the payment of average earnings for the period of unlawful dismissal, by analogy. However, since the suspension of employment is neither dismissal nor downtime and the application of the analogy of the law is difficult, at the end of 2024, the issue of payment of average earnings during the unlawful suspension of the employment contract was referred to the Joint Chamber of the Civil Cassation Court of the Supreme Court.

Olena Bilokon also focused on such a novelty of labour legislation as dismissal of an employee due to his/her absence from work and information on the reasons for such absence for more than four consecutive months. She spoke about the case law, in which the court emphasised that in order to legally dismiss an employee on this ground, the employer must not only establish the fact of the employee's four-month absence, but also prove that he or she did not really have information about the reasons for such absence. The speaker demonstrated the practice of applying such a ground for dismissal as termination of an employment contract due to the destruction of the employer's means of production or property as a result of hostilities.

The Supreme Court judge also highlighted the issue of preserving guarantees for employees who fulfil their duty to protect the Motherland, independence and territorial integrity of Ukraine. Until July 2022, Article 119 of the Labour Code of Ukraine provided that such employees would retain their place of work, position and average salary. However, after the relevant amendments were made, which, along with the termination of the guarantee to retain average earnings, increased payments to military personnel, the court practice has developed in such a way that such employees retain only their position and place of work, but not their average earnings. The Constitutional Court of Ukraine is currently reviewing these legislative changes to ensure that they comply with the Constitution of Ukraine.

Olena Bilokon's presentation is available here: https://court.gov.ua/storage/portal/supreme/prezentacii_2025/Prezent_Tryd_sporu_Hartia.pdf.

The event was organised with the support of the Council of Europe projects ‘HELP (Human Rights Education for Legal Professionals) for Ukraine, including during wartime’ and ‘Strengthening social protection in Ukraine’ in cooperation with the National School of Judges of Ukraine and the UNBA Higher School of Advocacy.