The war in Ukraine: UK employment considerations

This blog post is part of a series that intends to explore local employment law landscapes across Europe in relation to the war in Ukraine. You can read the first blog post here.

The ongoing war in Ukraine continues to cause devastation amongst Ukrainian nationals and other impacted individuals, and has developed into a humanitarian crisis.

Many UK employers will find that they employ individuals who are in some way negatively impacted by the crisis. This blog post provides some guidance to UK employers on what actions they might take to support Ukrainian nationals and other affected individuals during these difficult times.

Right to work in the UK

As outlined in our previous blog post, Ukrainian citizens and other third-country nationals who were residing legally in Ukraine before 24 February 2022, and their family members, can benefit from the Temporary Protection Status in the EU.

However, as the UK has not implemented the Temporary Protection Directive, 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.

Employer’s duty of care

It is a well-known principle of UK common law that an employer owes a duty of care to its employees. This duty provides that employers must take reasonable care of the health, safety and welfare of its employees. This extends to both physical and mental health, including stress.

Crises such as the current war often serve as a stark reminder to employers to be conscious of this wide-reaching obligation. It’s not difficult to see how the impact of the war in Ukraine could cause employees to suffer from stress and other injuries to health and that an employer may need to act. Employers should be aware that (i) the duty of care is owed to individual employees (i.e. the way in which the duty is to be discharged will depend on each employee’s specific circumstances), and (ii) the standard of care is determined by the requirements of reasonableness (i.e. the employer should balance the risk of potential harm and the cost of putting precautionary and/or supportive measures in place).

UK discrimination law also allows employers to take ‘positive action’ to support employees who may be at a disadvantage or who have particular needs, and there is a strong case that Ukrainians who have been negatively impacted by the crisis are at a disadvantage. Irrespective of an employer’s strict legal obligations, companies should also actively consider what additional measures they can put in place to support Ukrainian nationals and other affected employees, including:

• Ensuring that the companies’ Employee Assistance Programme is widely available and that employees know how to access other available support, such as counselling services and mental health first-aiders.
• Considering granting periods of (paid or unpaid) extended leave for affected employees who may need to take the time to process the devastating situation or provide much needed support to their friends, families or colleagues in Ukraine.
• Providing childcare funding and other financial support to help with time off or relocation (i.e. where a family has been impacted by conscription and parents require additional support to continue employment (see below for more information on conscription), or where additional time off is required).
• Reminding employees of bullying and harassment policies and being alert to potential workplace conflicts (including being ready to take disciplinary action if necessary) where employees have opposing views on the subject matter.

Conscription and its effect on UK employment relationships

As there is no current conscription regime in the UK, the legal considerations where a Ukrainian national, who is employed in the UK, feels compelled to join the war effort in Ukraine, are somewhat unclear.

If an employee did leave the UK in order to serve in the Ukrainian armed forces, there is a potential argument that the employment contract has been frustrated, which would release both parties from any future obligations under the contract. In practice, frustration claims in relation to employment contracts are difficult to make out and rarely succeed. The employer could instead act to dismiss the employee (e.g. on the basis that they are no longer turning up for work). This may be open to some risk of challenge.

Given the unprecedented nature of the conflict, employers may wish to take a less aggressive approach if their employees wish to join the Ukrainian forces and not rush to dismiss those who intend to leave and fight. Employers should consider a more sensitive approach, such as providing some leave (whether paid or unpaid) for such employees. Some companies have implemented policies allowing employees who are Ukrainian nationals to take a certain amount of paid leave to allow them to defend their country, which will be reviewed on a regular basis. At the very least, if an employee’s employment does formally end, employers should ensure an amicable departure and leave the door open for the employee to return and reapply for another role in the company.

Sanctions

Where the UK has imposed sanctions on corporations or individuals, the situation is relatively straightforward: the UK employer and employees should comply with any applicable sanctions imposed. However, multijurisdictional businesses may have UK nationals working in non-UK jurisdictions where the entity in that jurisdiction may be able to deal with a person or entity on the UK sanctions list, but where a UK national could be subject to individual criminal liability for breach of the sanctions rules, given that such rules apply extra-territorially to UK nationals.

Some UK employers may be left wondering whether they have a legal duty to notify employees of the extent of the sanctions rules and the steps they need to take to avoid individual criminal liability. This question goes back to an employer’s duty of care, and case law (Benyatov v Credit Suisse) has provided that an employer does not have a duty of care to prevent an employee from incurring criminal liability. Although this would suggest that there is no strict requirement to notify employees of the sanctions regime, the case made it clear that an employer’s duty of care depends on the reasonable foreseeability of the preceding criminal events, and each case will depend on the consideration of the precise facts. Employers should also continue to be mindful of vicarious liability; although the test for vicarious liability remains highly fact sensitive and will depend on how closely connected the employee’s wrongful conduct is to their authorised activities, case law has confirmed that it is possible for employers to be vicariously liable for criminal acts committed by their employees at work.

Employers should also be aware of the changes to UK sanctions legislation introduced by the Economic Crime (Transparency and Enforcement) Act 2022. The Act imposes a strict liability test with monetary penalties for certain breaches of sanctions legislation, and introduces a new power for the Office of Financial Sanctions Implementation to publish the names of persons in breach of sanctions legislation.

Therefore, this is an area where an employer may wish in any event to engage with its workforce in a more pro-active way to help protect the business and its reputation.