UKRAINE LEGAL UPDATE
5 September 2022
The Supreme Court agrees to review COVID 19 rules, including whether employee suspension for non-vaccination is lawful. Urged by its civil cassation bench, which feels the current regulation may be unfair, the full Court will need to clarify applicable law going forward. Involved are also the issues of constitutional equality and legal certainty.
The case that came before the Supreme Court concerned these facts. In December 2021 Ukraine’s state-owned railway company suspended an employee for refusing a COVID 19 shot. The employee sued the company, seeking reinstatement and back wages. A trial court’s decision in the employee's favor was overturned by an appeal court ruling for the employer.
The Supreme Court’s civil division found that although the appeal court’s decision (because given in a minor dispute) was barred from cassation by operation of law, it raised an important legal issue. This means, where many similar disputes are litigated, that the Court may choose to take an appeal. Its ruling in the matter would then define applicable law in future similar cases.
On this occasion the cassation judges found the law governing employee suspension for non-vaccination, a practice generating much litigation, to be unclear and inconsistent. The case, therefore, was liable to a determination by the Supreme Court’s Great Chamber.
The relevant legal issue was found to involve these questions, to be answered by the Grand Chamber:
Whether it is lawful for the matter of employee suspension for non-vaccination to be governed by delegated legislation, i.e., regulations made by the executive, rather than laws passed by the national legislature.
Whether the current legislation violates the principle of constitutional equality and so is discriminatory, given that it affects mostly public sector employees.
Whether the legislation conforms to the principle of legal certainty, enabling affected individuals to foresee legal consequences of their actions.
How rules of the legislation should be applied given that they regulate the same conduct differently.
By law the Supreme Court has up to two months to reach a decision. In practice, however, this may take longer.