Changes in labour law regarding probationary period
On May 17, 2016 the Verkhovna Rada of Ukraine has passed a Law of Ukraine «On Amendments to the Labor Code of Ukraine (Concerning the Probation Period)» (hereinafter referred to as «the Law»). The following changes have been introduced to the Labor Code of Ukraine by the Law, namely:
- The employer is obliged to notify the employee during his probation period in written three days prior of the impending termination of his employment agreement due to the establishment of his inconsistency with the position or the work for which he was employed
This means that the employer shall have to assess in advance whether the employee is suitable for the position or work, entrusted to him. Such assessment has to be done at least three days prior to the expiration of employee’s probation period, but not on the last day of the probation period as it often happens on practice. Otherwise, the employer will not be able to notify the employee of the impending dismissal in time, which, in case of trial, may lead to the renewal of the employee.
Please note that the Law is not signed by the President of Ukraine and shall enter into force on the day following the day of its publication. Therefore, if an employer plans to dismiss the employee who has not passed the probation and the dismissal accidentally falls on the date of entry the law into force, it is likely that the employee will be able to successfully appeal such dismissal due to lack of advance notice of dismissal.
- The Law has enlarged the list of persons for whom the probation cannot be set up. Specifically:
- persons appointed to the position;
- winners of the competitive selection for vacant positions;
- persons who have passed the training during hiring off-the-work;
- pregnant women;
- single mothers with a child under the age of fourteen or a disabled child;
- persons with whom a fixed-term employment agreement for up to 12 months is to be concluded;
- persons on temporary and seasonal works;
- internally displaced persons1.
- From now on the days when the employee actually has not worked, regardless of the reason, are not included into the probation period. Thus, the obligatory extension of probation period is set up for the whole period when the employee was absent from work.
- The dismissal of the employee due to unsatisfactory probation results is now qualified as the ground of dismissal by the employer. Thereby, the employee who has not passed the probation cannot be dismissed during his temporary disability, as well as during his vacation (this rule does not apply in case of complete liquidation of the company).
The above commentary presents the general statement for information purposes only and as such may not be practically used in specific cases without professional advice.