This summary of age discrimination law in Ukraine has been prepared by Vasil Kisil & Partners, the Ius Laboris member for Ukraine: www.vkp.ua.
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 Code provides that Ukranian citizens are entitled to equal labour rights. Article 22 states that employers are prohibited from discrimination against employees on a wide range of grounds when amending or terminating labour agreements. However, age is not included. Instead, 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.
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. For companies with 20 or more employees in the previous calendar year, the workplace quota for the employment of subsidised categories of employees is 5% of the workforce.
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.
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 16 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, 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.
No special administrative liability exists for discriminatory practices.
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?
Not applicable. See above.
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).
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.
On December 29, 2016, the Uzhhorod District Court of Zakarpattia in case № 308/10971/16 awarded the defendant moral damages in the amount of UAH 20,000 (approx. EUR 600) as a result of a successful age discrimination claim.
The court ruled that the applicant was discriminated against while being considered for the appointment as a director of regional local lore museum of Zakarpattia. The respondent in this case had publicly accused the defendant of not being able to cope with his direct duties as an elderly person who does not possess computer skills. The respondent had also questioned the defendant’s professional abilities and qualities of a manager based on his age.
The court found that in the vacancy announcement published by the respondent, there were no age restrictions for candidates or requirements to possess computer skills. Therefore, the court regarded the respondent’s statements as being discriminatory.
The Court of Appeal of Zakarpattia region upheld the District Court’s decision in its ruling of May 25, 2017. Currently, this case is awaiting the consideration by the Supreme Court.