Due to the war, the employee went abroad, but continues to be in labor relations with Ukrainian employers. Is the mere fact of being outside Ukraine enough to suspend the employment contract? What does the legislation provide for in this regard and under what conditions the employer can use the mechanism of suspension of labor relations? Read below.
Provisions of the current legislation
The current legislation of Ukraine does not include the employee's stay outside the country as grounds for suspension of the employment contract.
In practice, employers sometimes mistakenly believe that if an employee has gone abroad and is not located at the location of the enterprise, then the employment relationship can be automatically suspended. However, this approach does not meet the requirements of the law.
The very fact that an employee is outside Ukraine does not terminate their labor rights and obligations and does not create the right for the employer to unilaterally suspend the employment contract.
Under what conditions is it possible to suspend an employment contract
The first paragraph of part one of Article 13 of the Law of Ukraine "On the Organization of Labor Relations under Martial Law" No. 2136-IX of Mar 15, 2022, determines that the suspension of an employment contract is allowed only if there are two mandatory conditions at the same time.
Firstly, the employer is unable to provide the employee with work due to armed aggression.
Secondly, the employee cannot perform his labor duties for the same reasons.
That is, the law connects the possibility of suspension not with the employee's place of residence, but with the absolute impossibility of performing labor duties for both parties to the employment contract, which arose precisely as a result of hostilities.
When the suspension is unlawful
If the company continues to carry out economic activities, has the opportunity to provide the employee with work, and the nature of their work allows them to perform duties remotely, there are no grounds for suspension of the employment contract.
Similarly, there are no grounds for suspension if the parties can resolve the situation in another legal way, in particular by registering remote work, granting vacation or applying other labor organization mechanisms provided for by law.
In this case, the employee's stay abroad does not in itself indicate the impossibility of performing the work.
What should the employer pay attention to
When deciding on the suspension of an employment contract, the employer must assess not the geographical location of the employee, but the actual circumstances that make it impossible to perform labor duties.
The key criterion is the presence of a causal relationship between armed aggression and the inability of the parties to fulfill their obligations. If at least one of the parties has a real opportunity to perform their functions, there are no legal grounds for suspending the employment contract.
Therefore, the employee's stay abroad is not a legal basis for the suspension of the employment contract. The determining factor is not the location of the employee, but the presence of objective circumstances caused by the war, which at the same time deprive the employer of the opportunity to provide work, and the employee to perform it. It is this set of conditions that is mandatory for the lawful application of the mechanism for suspending an employment contract under martial law.
