During the period of martial law in Ukraine, relations between the employer and the employee are regulated by the Labor Code of Ukraine and the Law of Ukraine «On the Organization of Labor Relations under Martial Law» dated March 15, 2022 No. 2136-IX (hereinafter referred to as Law No. 2136). It is the latter that defines special rules that may be applied during this period.
Changes in essential working conditions during the war
The amount of salary, place of work, term of the contract, employee responsibilities, payment conditions, working hours, working hours, and vacations are essential working conditions.
No changes should occur without warning the employee. Before the start of a full-scale invasion, the employer, in accordance with Part 3 of Article 32 and Article 103 of the Labor Code, was to warn employees about changes in essential working conditions no later than two months in advance. However, during the period of martial law, the employee must be notified of changes in essential working conditions before they come into force (Part 2 of Article 3 of Law No. 2136). The employer is not temporarily obliged to warn employees about changes in essential working conditions in advance; it is sufficient to do so before the new conditions come into force.
Therefore, it is necessary to record two facts:
- date of introduction of new rules;
- confirmation of the employee's notification of the change in rules by the date specified above.
Proper warning about changes in working conditions, even a day or an hour before the introduction of such rules, will be sufficient for the employer.
Since there is no significant time gap between the warning and the changes in working conditions introduced by the employer, the question arises of confirming the fact of timely notification of the introduction of new rules. A personal notification to the employee against signature will be sufficient. If the employee refuses to read the notification, it is necessary to draw up an act of refusal to sign, which can later be used as evidence in court.
An employee may refuse to continue working due to a change in essential working conditions on the basis of clause 6, part 1, article 36 of the Labor Code even during martial law. In such a case, the employer must pay him severance pay.
Procedure for document management during wartime
Article 7 of the Law of Ukraine «On the Organization of Labor Relations under Martial Law» allows employers to establish their own procedure for maintaining document flow at the enterprise during the period of martial law. The only requirement is to ensure reliability.
This means that the employer and employee can agree on the rules for exchanging documents and messages related to work during martial law (both parties must agree to this). In practice, many documents are sent as scans/photos via email and various available messengers. The main thing is that this communication option suits both parties.
Of course, the parties should also take care to preserve evidence. In practice, this is manifested in preserving archives (photos) of correspondence in messengers, saving videos of online meetings. The most reliable way is an exchange of letters, which can be confirmed.
The electronic digital signature service is available to most citizens of Ukraine (in particular, through "Diya"), so it is quite appropriate, in the absence of the possibility of issuing documents in paper form, to use an electronic form with an electronic digital signature.
It would be safe for both parties to exchange relevant messages during working hours. This is not explicitly stated in the legislation, but since not all means of communication allow you to track the moment of receipt of a message (and a discrepancy between the time of sending and delivery of the message is quite likely), it is worth setting aside time for its receipt/processing.
Also, if it is determined that the company uses classic paper-based document management, then the following points should be agreed in advance: which means of communication will be considered authorized (both by the employee and the employer), which phone numbers/addresses should be considered approved. This will avoid abuse on both sides. For example, when a message is sent to a messenger to which the party does not have access.