An employer is not released from the obligation to pay wages to employees who were unable to perform their work duties due to the introduction of martial law and the occupation of territory — SC CivCC

Military aggression, the introduction of martial law, the occupation of the enterprise’s location, and shelling do not relieve an employer from the obligation to pay wages to employees. If the employer did not take appropriate organizational and legal measures regarding employees who were unable to perform their duties for reasons beyond their control (in particular, did not formalize downtime or suspend employment contracts), the employees are entitled to receive their average earnings for the entire period of forced non-performance of work duties.

This conclusion was reached by the Supreme Court, sitting as a panel of judges of the Second Judicial Chamber of the Civil Cassation Court.

In the case under review, the plaintiffs filed a claim against the Municipal Enterprise "Tokmak Multidisciplinary Hospital of Intensive Care" of the Tokmak City Council, requesting that the court establish the fact of downtime in the performance of their work duties from June 2022 to September 2023 and order the payment of average earnings for this period.

In rendering its decision to partially satisfy the claim, the court of first instance, whose conclusions were upheld by the appellate court, proceeded from the fact that the plaintiffs’ departure from the occupied city and their failure to perform their duties as hospital employees were objective and necessary. At the same time, the military aggression of the Russian Federation and the occupation of the locality where the enterprise is located are not grounds for releasing the employer from the obligation to pay wages, given that the employer did not suspend or terminate the legal entity’s activities, did not suspend the employment contracts with the plaintiffs, and did not declare downtime.

The Civil Cassation Court of the Supreme Court agreed with the conclusions of the first and appellate courts and formulated the following legal findings.

According to parts 1, 4, and 5 of Article 43 of the Constitution of Ukraine, everyone has the right to work, which includes the opportunity to earn a living by work that they freely choose or to which they freely agree; everyone has the right to proper, safe, and healthy working conditions, and to a wage not lower than that established by law; the right to timely remuneration for work is protected by law.

According to parts 2–4 of Article 10 of the Law of Ukraine “On the Organization of Labour Relations under Martial Law”, the employer must take all possible measures to ensure that employees are able to exercise their right to receive wages on time. The employer is released from liability for violating obligations regarding the deadlines for wage payment if they prove that such violation occurred as a result of hostilities or other force majeure circumstances. However, the employer’s release from liability for delayed payment does not exempt them from the obligation to pay wages. If the timely payment of wages becomes impossible due to hostilities, the payment period may be postponed until the enterprise resumes its operations.

The provisions of part 1 of Article 617 of the Civil Code of Ukraine cannot serve as grounds for releasing the employer from the obligation to pay the employee the unpaid wages.

The Civil Cassation Court of the Supreme Court noted that the plaintiffs were forced to leave the city due to its occupation and in order to protect their life and health, and therefore were unable to perform their work duties for reasons beyond their control. At the same time, the hospital’s management did not provide employees with instructions on how to act in such circumstances, did not suspend their employment contracts, and did not declare downtime.

The court of cassation stated that the employer’s failure to take the necessary organizational and legal measures in relation to employees who could not perform their duties for reasons beyond their control cannot serve as grounds for depriving them of the right to wages, which should have been paid under the terms defined in the employment contract, in accordance with Article 10 of the Law of Ukraine “On the Organization of Labour Relations under Martial Law”.

The Civil Cassation Court of the Supreme Court considered correct the conclusions of the courts that the military aggression of the Russian Federation against Ukraine, the introduction of martial law, the occupation of the settlement where the enterprise was actually located, and shelling are not circumstances that exempt the employer from the obligation to pay employees in the above circumstances.

Given the foregoing, the Civil Cassation Court of the Supreme Court left unchanged the decisions of the courts of first and appellate instances.

Resolution of the Supreme Court of August 20, 2025 in case No. 337/4651/23 (proceedings No. 61-11129св24) – https://reyestr.court.gov.ua/Review/129778511.

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.