Nataliia SLIPCHENKO,
Senior HR Administration Specialist of
Payroll Division BDO LLC
Specifics of personnel records management under martial law are regulated by the Law of Ukraine “On the Organization of Labor Relations in Martial Law” dated 15.03.2022 No. 2136-IX, entered into force on March 24, 2022. As many complex and new situations arise during the war, faced by employers for the first time, the Ministry of Economy of Ukraine on March 28, 2022, provided several clarifications on the course of actions of employers during martial law. However, employers still have many questions about how to put this into practice so as not to violate employees’ rights, ensure reliable accounting and comply with military legislation in time of war. Below you will find our practical advice on resolving some of the issues that most often arise in the personnel department during martial law.
Interesting on the topic: Features of personnel accounting / labor relations under wartime conditions
1. Order of work of the personnel department and the list of HR records that must be drawn up during the war
Despite the ongoing martial law in Ukraine, all employers must continue to keep personnel records.
According to the Ministry of Economy of Ukraine, during martial law, personnel records and archival storage of personnel documents are arranged at an employer’s discretion; therefore, a company must determine how the personnel department shall proceed, as well as the list of personnel documents to be drawn up during martial law. Please note that this rule does not cancel the employer’s obligation to draw up and keep personnel documents during martial law, but only enables to do so in accordance with its own rules. In other words, the employer must adhere to the current rules established by the labor law, and deviate therefrom and act at its discretion only where necessary.
We recommend that you continue storing and keeping personnel documents, which are mandatory, including staff list, timesheets, personnel orders, personal card P-2. However, this list of personnel documents is not exhaustive.
We consider it appropriate to amend the company’s instructions on personnel records (if any) respectively; in particular, to determine which personnel documents must be drawn up, and which can wait until the end of the war.
Furthermore, we recommend creating scanned copies of all of the above documents and place them on several data storages (such as computer hard drives, USB drives, external hard drives, memory cards), and save data to cloud storages (Google Drive, OneDrive, etc.). Such measures will ensure the preservation of data from loss in case of physical destruction of one of the data storage.
In maintaining personnel records during the war, the main condition is to ensure reliable accounting of work performed by employees and accounting of salary expenses.
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2. Formalizing of remote work and communication between an employee and an employer
Due to the hostilities in Ukraine, at the end of February 2022, many employees moved to safer regions of Ukraine or abroad and left their jobs. If the work specifics provide for the possibility of its performance remotely, using information and communication technologies, the employer should decide on the employee’s remote work, if such a decision was not made earlier in connection with the quarantine.
According to Part 11 of Art. 602 of the Labor Code of Ukraine, during the threat of the spread of epidemic, pandemic, the need for self-isolation of an employee in cases established by law, and/or in case of threat of armed aggression, emergencies of man-made, natural or other character, remote work may be introduced by a company director’s order (instruction) without concluding of a written employment contract for remote work. Personnel shall be familiar with such an order (instruction) within two days from the date of its adoption, but before the introduction of remote work.
The employee’s inability to perform remote work due to the lack of appropriate communications cannot be considered a violation of labor discipline.
If the employment contract for remote work was not concluded, and the employer’s order was issued for the employee’s remote work, in order to organize it properly, acquainting employees with orders (instructions), notices, duties, tasks and other documents of the employer, we recommend agreeing in advance on further communication and interaction between the parties during the remote work.
Currently, almost all companies need to simplify the process of familiarizing employees with the personnel documentation. To do so, it is necessary to provide a simplified procedure for communication between employees and the employer in terms of submitting applications to the employer and acquainting with the personnel documents, namely:
- identify means of electronic communication, such as e-mail, telephone number, mobile messenger, etc.;
- conditions for the employee’s reporting on the work performed (if necessary);
- conditions for notifying by the employee about situations that make it impossible to properly perform remote work;
- other conditions for communication and interaction between the parties.
This procedure can be fixed both in the company’s order or internal policy, and by concluding additional agreements to the employment contracts.
3. How to deal with labor books during the war
Under martial law, labor book can be handed over to an employee at his/her request. However, it is sensible to make such a request in the form of an employee’s application.
Once a labor book is handed over to an employee at his/her request, the employer disclaims responsibility for its storing. The purpose is to ensure employee's interests, who may change the place of residence due to danger, or even leave the country, get a fixed-term combined duties employment contract, etc. Having a labor book in hands would be better for the employee, as in case of the labor book destruction due to the hostilities, the employee will get a lot of trouble to restore the employment records for retirement purposes, and the employer is unlikely to be responsible, because we all live in war time, recognized as force majeure.
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If labor books are being kept by the employer and the remote employee in Ukraine or abroad decides to resign, the question arises as to how to hand over to the employee his/her labor book in the last working day. A reference should be made to the provisions of the Instruction on the Procedure for Keeping of Labor Books of Employees. In particular, clause 4.2 of the Instruction stipulates that if an employee is absent from work on the dismissal day, on that day, the owner or an authorized body sends the employee a mail message indicating the need to obtain a labor book.
Mailing of a labor book to the specified address is allowed only with the written consent of the employee. As such, the employee must provide his/her written consent (for example, in the form of an application) indicating a postal address to which a labor book must be sent, but only within Ukraine due to the fact that in accordance with paragraph 37 of the Rules for the Provision of Postal Services, approved by the Cabinet of Ministers of Ukraine dated 05.03.2009 No. 270, labor books are prohibited to be sent in international mails.
4. Actions of the employer in case of destruction or loss of personnel documents
What should be noticed is that any lost or damaged documents will need to be recovered at the earliest opportunity.
To do that, it is necessary to review the personnel documentation and find out which documents were destroyed or lost.
Then the employer should decide who will be involved in such recovery process and set the deadlines.
Moreover, the company should have an appropriate resource and all the necessary conditions should be created.
Note that currently the companies are not subject to any fines for the lack of mandatory personnel documents; however, after the war, the regulators will resume their inspections and there will be such a risk. Therefore, if it is possible to restore the documents now — restore them now and do not put it off.
5. How to keep records of worked time and attendance of employees who left their jobs on the territory of the hostilities
Since the war began, many employees have left their jobs and permanent residences to escape the hostilities, and are currently in Ukraine or abroad and do not work or the contact with them is lost. In this case, the employer has the right to record the absence (in the timesheet and the act of absence) and after the employee comes back to work, to demand explanations of the absence. The absence of such an employee must be marked as “НЗ” (“absence for unknown reasons”) or “I” (“other reasons for non-appearance”). Once the circumstances have been clarified and the reasons found to be important, the timesheet can be adjusted.
Experts of the State Labor Service consider the above reasons of absence from work to be important; therefore, they advise not to dismiss such employees due to absence, i.e., the employer has no right to dismiss an employee without his/her application due to the absence from work in connection with the hostilities.
6. How to formalize the absence of an employee during an air alert?
We believe that the employee’s absence from work during an air alert is not considered a violation of labor discipline.
Thus, the employee’s stay in the shelter is not considered as absence, and this time is not considered as downtime; so it is to be included in working hours.
7. How to keep records of mobilized employees and employees who joined the territorial defense?
According to Article 119 of the Labor Code of Ukraine, employees who joined a military component of the territorial defense and concluded contracts for military service, called up as reservists or during mobilization, must be released from work without loss of their job, position and average salary. Such releasetion is set out by an appropriate order of the director.
We recommend to indicate the time of absence of such employees from work in the timesheet as “ІН” — other unworked time provided by law.
Documents confirming the mobilization may be, in particular, a posting order or mobilization order of the Territorial Center for Recruitment and Social Support (TCR and SS); military ID; certificate from the TCR and SS or a military unit. Confirmation of the employee's participation in the territorial defense is the contract of the territorial defense volunteer.
If the employee did not have time to provide documents confirming the call (enrolment) for military service or involvement into the territorial defense, such employee must be marked as “НЗ” (absence for unknown reasons), until the employee provides the appropriate confirmation documents.
8. How to record the suspension of the employment contract for the period of martial law?
It should be noted that there is no direct symbol for the suspension of the employment contract in the typical form of timesheet No. P-5. According to the recommendations of the Main Department of State Labor Service in Odessa region dated 12.04.2022, to keep work and attendance records of the employee with whom the employment contract is suspended, the symbols “ІН” — other unworked time, “ІВ” — other types of absence provided by collective agreements or “І” — other types of absence can be used.
Please note that only proper keeping of attendance records will ensure the accuracy of accounting for work performed by employees and accounting of salary expenses.
9. Notice of employment
In the lack of the employer’s technical capacity to file a notice of employment / concluding a gig contract by electronic means in electronic form, such notice may be filed in the form of a paper document in accordance with the annex together with an electronic copy thereof.
If the employer is unable, due to circumstances beyond its control, to file a notice of employment with the State Tax Service of Ukraine or its territorial body, it must have confirmation of attempts to do so.
10. Statistical reporting (No. 1-PV (monthly and quarterly), No. 3-debt (monthly))
According to the explanation of the State Statistics Service of Ukraine dated March 10, 2022, statistical reporting in documentary and (or) electronic form is filed with the State Statistics Service within three months after the cessation or abolition of martial law or the state of war for the entire period of non-reporting.
Therefore, employers will not be subject to administrative liability for such non-reporting or late reporting during martial law or the state of war, as well as within three months after abolition thereof.
Furthermore, employers who are not physically able to report within the above deadline on the direct consequences of their participation in hostilities, are released from administrative liability and file reports or documents no later than 30 calendar days from the end of the consequences that made filing thereof impossible.
Experts of the State Statistics Service also assure that during the period of martial law or the state of war, there will be no inspections of the timeliness and completeness of the statistical reports filing.
Although the war has made its adjustments to our daily life and work, we have to adapt to such conditions and be prepared to resolve complex and controversial issues that arise during the work, in particular in keeping personnel records.
Summarizing the mentioned above, despite the martial law in Ukraine and the hostilities in some regions of Ukraine, personnel records should be kept solely in accordance with the requirements of current legislation.