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Publication date: 17.05.2024
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Peculiarities of hiring persons with disabilities at 0.5 rates: implementation of regulations and judicial practice
Let us consider the commentary to the decision of the Supreme Court of June 9, 2021, case No. 920/474/20 (hereinafter referred to as Supreme Court).
Part three of Article 18 of the Law "On the Basics of Social Protection of Persons with Disabilities in Ukraine" dated March 21, 1991 No. 875-XII as amended (hereinafter - Law No. 875) clearly defines the list of obligations of enterprises that use hired labor:
• allocate and create workplaces for employment of persons with disabilities, including special workplaces;
• create working conditions for them taking into account individual rehabilitation programs and provide other social and economic guarantees provided for by legislation;
• to provide the state employment service with information necessary for the organization of employment of persons with disabilities.
Jurisprudence shows that the duty to employ such persons in accordance with the standard rests on both employers and the state employment service. Therefore, the search for persons with disabilities is the duty of employment centers.
Businesses are obliged to create jobs for persons with disabilities, but they are not obliged to search for such persons for employment.
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Employment centers are responsible for searching and referring such persons to employers who have vacant positions.Let's take into account the conclusions of MSEK in the employment of persons with disabilities
It is clear that the duties of the employer include the creation of jobs for persons with disabilities, proper reporting to the Social Protection Fund for the Disabled and the employment center regarding the availability of vacant jobs, employment of persons with disabilities who apply directly to the employer or are referred for employment by the employment center.
Before hiring a person with a disability, the employer must make sure that he does not violate the recommendations of the medical commission.
Court practice shows that not all employers comply with the regulations on employment of persons with disabilities, sometimes deliberately creating conditions for "special" employees that provoke the employee to leave the company.
For example, in the commented court case, the Fund for Social Protection of the Disabled imposed a fine of UAH 3,687,476.19 for the unemployment of 29 persons with disabilities at one enterprise.
Analyzing the reports submitted by the company on form No. 3-PN, the staff list, the roots of referrals for employment, it became clear that the company:
• has a low salary;
• offers only part-time jobs (0.5 full-time employees) to persons with disabilities. At the same time, the staff list provides only whole staff units;
• sometimes rejects disabled persons sent from the employment center as "not meeting the requirements";
• created conditions due to which persons with disabilities themselves refuse the offered job due to part-time working hours and low wages.
The Foundation revealed distorted data according to the report form No. 3-PN. The number of vacancies that had to be created is underestimated.
Studying the content of the roots of referrals from the employment center, it became known:
• an individual refused employment due to "low wages, harmful factors at work for health";
• the individual refused employment due to "harmful factors for health";
• the individual was denied employment for the reasons "not recommended by the program";
• an individual was denied employment due to non-compliance with the requirements "employment is not recommended by the IPR program, work at heights and near moving mechanisms is contraindicated."Conclusion: the enterprise maliciously violated most of the regulations when employing "special" workers who were sent by the employment center according to the announced vacancies.
The courts were very interested in the report submitted by the company itself to the employment center.
Thus, according to the content of the submitted report on form No. 3-PN "Information on demand for labor (vacancies)" in the period January-December 2019, the company reported to the employment center about the availability of 21 vacancies for employment in the following positions:
• "account manager 0.5 pcs. unit." — 1 vacancy;
• "auxiliary worker 0.5 pcs. unit." — 10 vacancies;
• "cleaner of office premises 0.5 pcs. unit." — 10 vacancies.
The appellate court, with which the Supreme Court fully agreed, noted that according to the provisions of Articles 50 and 51 of the Labor Code of Ukraine (hereinafter - the Labor Code), for persons working under an employment contract, a normal (up to 40 hours per week) and reduced working hours.
At the same time, the grounds for establishing a mandatory shortened working day and the corresponding categories of employees to whom such a restriction is applied by law are provided by the provisions of Article 51 of the Labor Code. However, such persons do not include persons with disabilities.
The Labor Code provides for the possibility of establishing a shortened working day, including for persons with disabilities, which can be implemented when such persons are hired. Maybe, but not necessarily!
At the same time, in accordance with Article 56 of the Labor Code, a part-time working day or a part-time working week is established exclusively by agreement of the parties upon hiring or during the performance of labor duties by an employed employee.
But the employer's creation of part-time jobs for potential employees with disabilities contradicts the purpose and requirements of the Law of Ukraine "On the Basics of Social Protection of Persons with Disabilities in Ukraine" dated March 21, 1991 No. 875-XII (hereinafter - Law No. 875). Because it determines the obligation to create at least 4% of the total number of jobs according to the staff list. At the same time, in the staff list of the enterprise in the commented case, all employees work at the full rate of a full-time unit.
As mentioned above, part five of article 19 of Law No. 875 defines that the fulfillment of the standard of workplaces in the number determined in accordance with part one of this article is considered employment by the enterprise of persons with disabilities for whom this place of work is the main one.
Therefore, it is possible to establish part-time employment for persons with disabilities.But only by agreement of the parties (that is, if both the person with a disability and the employer agree) and in the event that part-time employment is provided for in the staff list for other employees as well.
As a result, we have such a complex court decision and reasoning of the appellate instance, supported by the Supreme Court.
Note that an employer who created new staff units, but did not create adequate conditions for the employment of persons with disabilities, is considered to have not fulfilled the requirements of the standard in full. Therefore, if a person with a disability is accepted for a position, after the relevant employment contract is drawn up, a workplace will be organized for her, taking into account the conclusions of the MSEK. This will give confidence to employers that they not only created full-time units, but also managed to organize a workplace for a person with a disability under the terms of the contract, as provided by the Labor Code. labor dispute lawyer services labor relations lawyer
