This summary of age discrimination law in Ukraine has been prepared by Vasil Kisil & Partners, the Ius Laboris member for Ukraine: www.vkp.ua.
OVERVIEW
Article 24 of the Constitution of Ukraine provides for a general prohibition of discrimination against race, colour, political, religious, and other persuasions, sex, ethnic or social origin, property status, place of residence, language or other distinctions. A general anti-discrimination framework is set out in the Law on Principles of Prevention and Combating Discrimination, where discrimination based on age is explicitly prohibited.
The following laws are relevant in the employment context: (1) the Labour Code of Ukraine (Code); (2) Law on Employment and (3) Law on Basic Principle of Social Protection of Veterans of Labour and Other Elder Citizens in Ukraine.
Article 2-1 of the Labor Code of Ukraine provides that Ukrainian citizens are entitled to equal labour rights. Age requirements are provided by different sources – e.g. Law on Compulsory Pension Social Security, Law on the Judiciary and the Status of Judges (comprises requirements for judges), Law on Prosecutor’s Office (requirements for public prosecutors), Law on Civil Service (requirements for other categories of public servants). Public servants for example, are subject to certain age requirements. Candidates running for office should be at least 30 years of age.
Article 2-2 of the Labor Code of Ukraine prohibits mobbing, which includes humiliating an employee based on their age. On November 16, 2022, in Ukraine, the Law regulating mobbing (harassment) was adopted. Thus, mobbing includes systematic long-term intentional actions of individual employees aimed at humiliating the honor and dignity of another employee. In addition, an employee may be dismissed for committing mobbing (harassment) only if such actions are established by a court decision that has entered into force.
The Law on Employment provides for equal treatment in employment, restricts how job advertisements may be drafted in that age requirements cannot be included, and establishes administrative liability where there has been a breach. The Law of Employment also requires employers to meet a mandatory employment quota for the employment of “subsidised categories of employees”. These categories include: pre-retired employees (between 50 and 60 years old), young specialists (i.e. fresh graduates)) and certain other categories.
Under the Law on Basic Principle of Social Protection of Veterans of Labour and Other Elder Citizens, elder citizens enjoy equal social-economic and personal rights, such that discrimination against them is prohibited in all spheres, including employment. Elder citizens are defined as citizens who have reached retirement age (60) or will be reaching it in less than one and a half years.
WHO'S COVERED?
Employment anti-discrimination provisions cover employees in the private sector and public servants only. As agency workers are considered to be employees of the agency, they are also entitled to the same protections. Those serving the military and in commercial relationships, i.e. with independent contractors, are only protected by the general anti-discrimination provisions provided for in the Constitution of Ukraine and the Law on Principles of Prevention and Combating Discrimination.
WHAT ENFORCEMENT/REMEDIES EXIST?
In accordance with Article 14 of Law on Principles of Prevention and Combating Discrimination a person who believes that he/ she has been discriminated against has the right to complain to state bodies, including the State Labour Service of Ukraine local authorities and their officials, the Ukrainian Parliament Commissioner for Human Rights and/or to the court in accordance with the procedure established by the law.
Victims of discrimination can claim damages and compensation for moral harm suffered as a result of discrimination in civil proceedings. According to anti-discrimination laws, the burden of proof in civil discrimination suits lies on the defendant.
Under Article 161 of the Criminal Code of Ukraine, it is a criminal offence to carry out wilful actions inciting national, racial or religious enmity and hatred, humiliation of national honour and dignity and insulting citizens’ feelings with respect to their religious convictions, as well as the direct or indirect restriction of rights, or the granting of direct or indirect privileges to citizens based on a series of grounds including race, colour, religious convictions, ethnic origin, language and other grounds. Although age discrimination is not specifically mentioned in this article, it is covered under the ‘other’ grounds.
In addition, on December 01, 2022, the Ukrainian Parliament adopted Law No. 2806-IX on liability, which establishes administrative liability for mobbing in the form of an administrative fine in the amount of EUR 42 to EUR 84.
HOW COMMON ARE CLAIMS?
Age discrimination claims are very uncommon, but we expect them to increase as Ukraine is expected to enhance its anti-discrimination protections to meet the harmonisation commitments undertaken in the Ukraine–European Union Association Agreement.
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?
Despite the fact that there are not many court cases on age discrimination, the most popular disputes include:
- transfer of retired pedagogical staff to a contractual form, which contains signs of age discrimination;
- refusal to hire and dismiss an employee at the initiative of the owner or his/her authorised body on the grounds of age;
- vacancy announcements (advertisements) contain restrictions on the age of candidates.
ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAWS?
Discrimination can be justified where age requirements are specifically allowed by law. Such requirements exist for public servants and military officers.
In 2017, public servants, judges, prosecutors and teachers were no longer entitled to receive special pensions. The rationale behind this change was to make all professions equal in terms of entitlement to pension (save for the military).
RETIREMENT AGES
The statutory mandatory retirement age in Ukraine is 60, in which the employer has the right to terminate employment on the grounds of retirement. This however, is only limited to public civil servants and does not apply to employees working in the private sector.
In accordance with Ukrainian legislation, pedagogical employees of state and municipal educational institutions of general secondary education who have reached retirement age and are paid a retirement pension are employed based on fixed-term employment contracts. While other employees of the same category have indefinite employment agreements.
INTERESTING CASES
On 30 May 2019, the District Administrative Court of Kyiv in case № 640/4877/19 the plaintiff asked the court to declare unlawful the refusal of the Main Department of the Pension Fund of Ukraine in Kyiv to appoint, accrue and pay a monthly lifetime allowance to a retired judge under the age discrimination matters.
According to Ukrainian law, "a judge who has confirmed his or her suitability for the position and has served as a judge for at least 3 years from the date of the relevant decision based on of the qualification assessment results has the right to receive a monthly lifetime allowance in the amount provided for by the current Law". All other judges are entitled to receive a monthly lifetime allowance in the amount provided for by the previous law, where the amount of judicial remuneration is much lower.
The plaintiff stated that she had passed the qualification assessment and confirmed her ability to administer justice in the relevant court in 2016. In 2018, she resigned as she reached the age of 65. Thus, she was physically unable to work for 3 years from the date of the qualification assessment.
Given the above, the court said that "the imposition of duties and restrictions provided for by law indicate age discrimination against the plaintiff as a judge".
In other words, the plaintiff's colleagues who passed the exams at the age of 62 had the physical ability to work for 3 years after passing the qualification assessment and to claim a higher percentage of monthly lifetime allowance than the plaintiff. Therefore, only because of her age, the plaintiff did not have the opportunities that her colleagues had.
Similar court decisions have been considered by many courts of first instance and appellate courts, which led to the discussion of this issue by the Constitutional Court of Ukraine.