Together with payroll and personnel administration experts of BDO in Ukraine, we continue to review changes to labor legislation in connection with the imposition of martial law. It should be noted that the rules of martial law in Ukraine in no way influenced the peculiarities of storing and maintaining employment books.
Many employees are concerned about their employment books, which could theoretically be damaged in the event of harm or destruction of the employer's office premise where they are stored; so, they ask management to get them in hand on receipt of return after martial law.
Therefore, both employers and employees have many questions in this regard. We will try to answer some of them below.
1. Is it possible and necessary to hand over employment records to employees due to martial law?
No, it's not. The employer must continue to keep paper employment books of current employees within the company.
As no one has revoked the Instruction on the Procedure for Keeping Employment Books dated July 29, 1993 No. 58, employment books are handed over to employees only in the event of their dismissal, and the responsibility for organizing the accounting, storage and issuance of employment books still rests with the head of the entity.
However, starting from June 10, 2021, in accordance with the provisions of the Law of Ukraine “aw on Amendments to Certain Legislative Acts of Ukraine Concerning the Recording of Employees Labor Activity in Electronic Form” dated February 5, 2021 No.1217-IX, employees and their employers were granted five years to transfer employment books into electronic format. Afterwards the paper employment book will be unnecessary and can be transferred for storage to the current employee or, at the request of the employee, can be kept in parallel with the electronic employment book.
As such, if the paper employment book is scanned or digitized and sent to the PFU (Pension Fund of Ukraine), it can be transferred for safekeeping to the current employee according to his/her application and order.
2. Is it necessary to make an entry about the mobilization in the employment record book?
On February 24, 2022, as a result of the large-scale invasion of the russian federation into Ukraine, the general mobilization was announced by the Decree of the President of Ukraine No. 69/2022.
As a result, many HR professionals of entities whose employees were mobilized had a question whether to record the mobilization in the employment records of such employees. As there is no direct answer to the question of whether to record the mobilization in the employment record book in the Instruction on the Procedure for Keeping Employment Books, we tried to find the answer in the current legislation.
According to the law, employees called up for military service during mobilization for a special period (the full list is given in Article 119 of the Labor Code of Ukraine), for the period until its expiration or until the day of actual dismissal, retain employment, position and average earnings at the company where they worked at the time of conscription.
Therefore, the employer must issue an order releasing the mobilized worker from work for the duration of his/her service while maintaining his/her job, position and average earnings.
However, it is not necessary to make an entry about the mobilization in the employment record book, as it is not provided by any normative act.
3. Will non-issuance of an employment book to a dismissed employee on the day of his/her dismissal during martial law be considered a violation?
Today, many companies whose offices are located in the war zone do not have access to personnel documents and employment records. Employees of such entities were forced to evacuate to other regions of Ukraine or abroad. Where possible, employees work remotely, and some employees have even moved with their businesses to quieter regions of Ukraine.
Therefore, if an employee employed before 10.06.2021 with his/her employment book still kept by the employer, wants to resign voluntary or with the consent of the parties and withdraw his/her employment record book, and the employer is unable to issue him/her an employment record book, will this be considered a violation of the law?
Yes, it will be considered a violation, as the employer is obliged to issue such an employee an employment book on the day of his/her dismissal.
But responsibility is another matter. We believe that in a state of martial law, a party who is unable to fulfill its obligations due to force majeure is released from liability for failure to fulfill its obligations.
4. What should be done with the employment book of an employee who died during the war
In the event of death of an employee during the war as a result of hostilities, his/her employment record book must be handed over to his/her next of kin on receipt or sent by mail upon their request.
If for some reason the employment book was not received by the relatives of such an employee, the employer must keep it for 2 years separately from other employment books of current employees, and after the expiration date, such employment book must be stored in the employer's archive for 50 years. After the expiration of archival storage, unclaimed employment books can be destroyed in the prescribed manner (paragraph 6.2 of the Instruction No. 58).
5. What if an employee lost his or her employment record book during the war?
The employment book is not the most important thing in a person's life, which he or she should think first about when hastily packing things and escaping the war, but its absence can be a reason for denial of future employment.
However, do not worry about it, as there are several possible options in this regard:
- If the employee is in an employment relationship and his/her employment record book remains with the employer, he/she can get another part-time job. We hope that after the war, the employer's access to personnel documentation will be restored and the employee will be able to get the original of his/her employment book.
- If the employee has already resigned at the time of leaving the place of residence or later and he/she does not have an employment book, we suggest considering the following options:
- According to Article 24 of the Labor Code of Ukraine, when concluding an employment contract, a citizen is obliged to submit an employment record book (if any) or information on employment from the Register of Insured Persons of the State Register of Compulsory State Social Insurance. If the employee's employment book has already been digitized and submitted to the Pension Fund of Ukraine, and even if not, in the personal account of the insured person on the PFU portal in the section "Electronic employment book", since 1998, information is reflected about the employee's labor relations at the principal place of employment according to the PFU’s personalized accounting. As such, the employee can order an extract from the register of insured persons in person or through a representative in the PFU's territorial office at the new location or online on the PFU's electronic services portal, or even easier — on the Дія portal by filling out an application. It's also possible to get certificates in OK-5 and OK-7 forms (individual information about the insured person). Please note that receiving an extract is free.
Such information/extract/certificates may be provided by the employee during employment.
- Furthermore, the Instruction on Procedure for Keeping Employment Books No. 58 provides for the possibility of drawing up a duplicate employment record book. As such, according to section 5 of the Instruction, it is drawn up, as a rule, at the last place of work. In the case of restoration of access to the employment record book, entries from the duplicate of periods of work are transferred to the employment record book, and the duplicate is canceled.
In any case, we draw your attention to the fact that currently the lack of the employment book is not a reason for refusal of employment.
Seek advice, if you have additional questions.