The unfolding humanitarian crisis affecting those fleeing the war in Ukraine continues to trigger action from different stakeholders, including employers. The priority across neighbouring countries and beyond is still to cover refugees’ basic needs, including food, health and housing, but as refugees are starting to settle in their host countries, issues such as children’s access to education or parents’ right to work are becoming more topical.
Many businesses are exploring the possibility of employing people who have been displaced from Ukraine, whether they want to play their part in the response to the humanitarian crisis or have needs to be met (as there is a shortage of skills and manpower in some countries and sectors).
In this blog post, we look at the immigration and employment law issues that are relevant to both those in search of a job in their host country and those in search of new employees. We have put together a list of questions that employers and (future) employees might find useful to consider.
Where the questions below are intended to cover new working relationships, some will equally be relevant to employers looking to help their existing workers who were based in Ukraine. Some of these workers will simply be able to carry on with their jobs, working remotely, but for other roles, the situation is more challenging and will require more adjustments.
This blog post is the first in a series that intends to explore local employment law landscapes across Europe when it comes to employing people displaced from Ukraine.
The EU Temporary Protection Status
Most will be familiar by now with the EU Temporary Protection Status, which derives from a 2001 directive and which was activated for the first time by an EU Council decision in early March.
According to the Directive and the Decision, Ukrainian citizens and other third-country nationals that were legally residing in Ukraine, based on a permanent resident status (temporary residents, i.e. foreign students in Ukraine are not included), before 24 February, and their family members, can benefit from the Temporary Protection Status. The offered protection consists of several rights including the right to reside and access to housing, health services, training and education. It also includes the right to work, either as an employee or as a self-employed contractor.
This EU status is of course good news for the people in scope, as it, at least on paper, saves employers and workers from the usual and often cumbersome process of obtaining the relevant authorisations (work permits etc).
However, given that the Temporary Protection Status derives from a directive creating a minimum harmonisation, Member States have implemented it differently, some being more flexible than others. Local implementation will be discussed in more detail in the next blog posts in this series. In the meantime, the European Commission’s website provides information on local implementation as well as links to the relevant local authorities.
The European Commission (the Commission) keeps publishing guidance to Member States on how to best use the Temporary Protection Status. On 23 March, it announced its intention to launch a talent pool to match skills with job vacancies and to develop guidelines to facilitate recognition of professional qualifications (read more below).
Nevertheless, a number of displaced people from Ukraine are not covered by the EU Temporary Protection Status and will not benefit from access to the labour market nor any of the other rights attached to this status. An example are the many foreign students or foreign workers who were residing in Ukraine before 24 February 2022 under a short-term residence permit. Employing them in EU Member States will require compliance with the usual immigration regulations, including work permit requirements.
Because of Brexit, the temporary protection status is of no help in the UK, where different rules apply. These will be detailed in a UK blog post to come, but in a nutshell, among other things, the UK Home Office has introduced ‘temporary visa concessions’ for Ukrainian nationals to move to the UK under the Ukraine Family Scheme (where Ukrainian nationals and eligible family members are able to join UK-based family members in the UK) and the Ukraine Sponsorship Scheme (which allows Ukrainian nationals and their family members to come to the UK if they have a named sponsor). Under both schemes, successful applicants will be granted immigration permission for up to three years, allowing them to live, work and study in the UK and access public funds.
Existing employment relationships in Ukraine
- Military service obligation: Men between the age of 18 and 60 are not allowed to leave the country. Those that are conscripted into the army will see their existing employment contract temporarily suspended. This is a new concept that was introduced by a recent law on labour relations during martial law in March. According to the latter, ‘temporary suspension’ requires the employer to temporarily stop providing work to the employee and the employee to temporarily stop working under the employment agreement (you can read more about this law in this blog post). Separately, a refusal to join the army during the state of war can lead to criminal liability.
- Duty of care: Employers are offering help to Ukrainian and other impacted employees such as financial support in case of relocation, paid leave, counselling services and more.
New employment relationships with displaced workers from Ukraine
- Residence and work permit: As noted above, those with Temporary Protection Status have a right to reside and work across the EU. However, a number of Ukrainian refugees will not be in scope and employing them will therefore require compliance with the relevant immigration laws.
- Working relationship – what is the best framework? Parties will need to decide whether to use an employment contract or a self-employed contractor status. The administrative burden that comes with self-employed status might be deemed inappropriate in the current circumstances.
- Employment agreement – fixed term or open-ended? As no one can foresee how long the crisis will last, using fixed term contracts may prove to be difficult. Fixed term contracts are generally strictly regulated and especially difficult to end before their term expires. In addition, there are restrictions on the number of successive fixed term contracts which can be signed between parties. With this in mind, open-ended contracts might be a preferable option, although termination costs may be high in some jurisdictions. Another option to consider would be to contract the refugee through an agency, as a temporary worker.
- Compensation: One will need to double check for possible local legal requirements for hiring Ukrainian/other affected third-country nationals, in relation to remuneration and social security. The Directive on Temporary Protection provides that for those who benefit from it, the general laws of Member States on remuneration and access to social policy will apply. The Directive complies with the Geneva Convention relating to the status of refugees. The latter requires that the refugees enjoy the same working arrangements and social security protection as those of the nationals of the hosting state. Therefore, even in the case when refugees do not benefit from the Temporary Protection Status, they should in principle still be granted the same remuneration and social security rights as nationals, under the Geneva Convention. When it comes to the way remuneration will be paid, the EU Member States require the payment via bank transfer. This is why, in some Member States, some banks have already introduced specific procedures for displaced people to open a bank account quickly.
- Professional qualifications: Some jobs require specific qualifications. Will professional qualifications (diplomas and licences to practice independent professions such as law, architecture, etc) obtained in Ukraine/other third countries be recognised? The Commission published on 5 April a recommendation facilitating recognition of professional qualifications. It recommends to Member States to issue the recognition for incoming professionals that benefit from the Temporary Protection Status and to reduce to the minimum the formalities for doing so.
- (Positive) discrimination: Can employers give preference to refugees from Ukraine? The general rule is that employers cannot prefer candidates based on their nationality. However, they can take limited actions to favour Ukrainian refugees, such as encouraging applications from displaced people, offering training and work experience, or providing mentoring services. In the UK, there are steps that can be taken as ‘positive action’ to support those who are suffering a disadvantage or have particular need connected with a protected characteristic (i.e. Ukrainian nationality). There is an argument that fleeing war, leaving behind families/work and entering into a job market you are unfamiliar with creates such a disadvantage or particular need. However, employers can only treat those with the protected characteristic more favourably in the limited circumstances. As such, positive action in recruitment is allowed only as a ‘tie-breaker’ and ideally at the end of a recruitment process.