Inclusive employment is an important component of the social policy of Ukraine. To ensure equal opportunities and social protection of persons with disabilities, the legislation establishes clear obligations for employers. In particular, employers are obliged to create appropriate working conditions that take into account the needs of persons with disabilities and comply with standards for their employment.
What are the specifics of fulfilling such an obligation and what judicial practice is being formed in such disputes, we will consider in more detail in this article.
The obligation of employers to ensure the rights of persons with disabilities to employment and paid work is established in the Law of Ukraine "On the Fundamentals of Social Protection of Persons with Disabilities in Ukraine" dated March 21, 1991 No. 875-XII (hereinafter referred to as the Law).
According to Article 18 of the Law, employers – enterprises, institutions, organizations, including enterprises, organizations of public associations of persons with disabilities, individuals who use hired labor – are obliged to allocate and create jobs for the employment of persons with disabilities, including special jobs.
This same Law also established the so-called "regulations on the employment of persons with disabilities" - a certain number of jobs for the employment of persons with disabilities, which is established based on the number of employees at the enterprise.
- For employers with a number of employees from 8 to 25 people- 1 workplace.
- For employers with a number of employees 26 people or more- 4 % of the average number of full-time accounting staff per year.
Importantly! For employers with the number of employees up to 8 people compliance with the standard does not apply.
The number of full-time employees does not include persons hired for part-time work. Similarly, part-time workers are not taken into account when fulfilling the specified standard. The standard for the employment of persons with disabilities will be considered fulfilled if the person is employed as a main place of work.
The obligation to submit information on the availability of vacant jobs (vacant positions) is provided for The procedure for providing the State Employment Service with information necessary for organizing the employment of persons with disabilities, approved by the Resolution of the Cabinet of Ministers of Ukraine dated 02.06.2023 No. 553.
According to clause 2 of the Procedure, from the date of the need to recruit employees with disabilities or from the date of opening vacancies, the employer must notify the employment center by submitting reporting form No. 3-PN "Information on the demand for labor (vacancies)".
General requirements for filling out form No. 3-PN and the mechanism for its submission have been established by order of the Ministry of Economy of Ukraine dated 12.04.2022 No. 827-22:
- is served regardless of locationemployer to a branch of an interregional or regional employment center (or a city/district/city-district employment center - until the date of termination of their activities).
- is served no later than 3 working days from the date of opening the vacancy– the day after the creation of a workplace, termination of employment relations with the employee, or the date from which an employment contract may be concluded.
- submitted electronically (through the Unified State Web Portal of Electronic Services/ "Electronic Account of the Employer") or in paper form.
- may be primary(regarding the availability of demand for vacancies) and clarifying (if the characteristics of the vacancy, working conditions, requirements for the candidate, salary, etc. change).
We pay attention! Such reporting is submitted only when a vacancy appears. It is not necessary to submit Form No. 3-PN monthly or at any other frequency.
Employers' compliance with the specified standard is monitored annually (until March 10) The Social Protection Fund for Persons with Disabilities in an automated mode by checking data from the State Register of Compulsory State Social Insurance and the Centralized Data Bank on Disability Issues.
Employers are threatened for failing to meet the standard administrative and economic sanctionsThe amount of such sanctions is calculated for each vacant workplace intended for the employment of a person with a disability, and also depends on how many employees work at the enterprise:
- For employers with a number of employees from 8 to 15 people– half of the average annual salary.
- For employers with a number of employees from 16 people – average annual salary.
At the same time, the Law provides for the possibility of "correcting" inconsistencies and reducing the amounts of accrued sanctions - by March 31, employers will be able to submit updated indicators for the previous year, which are reflected in the State Register of Mandatory State Social Insurance.
Importantly! If the employer misses the deadline for paying the fine, they will have to pay an additional fine (120 % annual NBU discount rate, effective at the time of payment, accrued on the full amount of the arrears for its entire term).
Deadline for payment of sanctions for employers – until April 15th, which follows the year in which the standard of jobs for the employment of persons with disabilities was violated.
Inspections of employers regarding compliance with legislation on creating jobs for people with disabilities are carried out by the State Labor Service and its territorial bodies.
The procedure for conducting such inspections is provided for The procedure for monitoring compliance with the standard of workplaces and inspecting enterprises, institutions, organizations, including enterprises, organizations of public associations of persons with disabilities, individuals who use hired labor, regarding compliance with the standard of workplaces intended for the employment of persons with disabilities, in particular by enrolling them, approved by the resolution of the Cabinet of Ministers of Ukraine dated January 31, 2007 No. 70.
State Labor Service inspections can be both scheduled and unscheduled.
According to clause 16 of the Procedure, if the results of the inspection establish that the standard of workplaces for the employment of persons with disabilities has not been met, measures are taken to bring the guilty officials to administrative responsibility. A copy of the inspection report is sent to the Fund for Social Protection of Persons with Disabilities.
After receiving the inspection report from the State Labor Service, the territorial bodies of the Social Protection Fund file a lawsuit with the court to collect administrative and economic sanctions and fines from employers - "violators" for failure to comply with the standard provided for in Article 18 of Law No. 875-XII.
At the same time, judicial practice regarding compliance with the employment standard for persons with disabilities is quite consistent.
In accordance with the legal positions highlighted in the resolutions of the CAS of the Supreme Court in case No. 160/4187/19 dated 07/25/2022, in case No. 820/2132/17 dated 02/24/2020 "The enterprise (individual) is obliged to independently employ persons with disabilities through job creation for the employment of persons with disabilities and informing about the number of jobs created employment agencies for people with disabilities, including employment centers. In turn, the law does not impose an obligation on an enterprise (individual) to independently search for employees with disabilities».
According to the conclusions set out in the resolution of the CAS of the Supreme Court in case No. 460/5056/21 dated 13.03.2023 "The obligation of a business entity to create jobs for persons with disabilities is not accompanied by its obligation to select and employ such persons in the created jobs. Such an obligation is imposed on employment agencies."
Proof that demonstrates the creation of jobs for the employment of persons with disabilities, including special jobs, and the notification of employment agencies about the availability of vacant jobs for persons with disabilities is a report in form No. 3-PN.
Therefore, to avoid any claims from social protection bodies, as well as to confirm that you or your company comply with the norms of the Law of Ukraine "On the Fundamentals of Social Protection of Persons with Disabilities in Ukraine", we recommend that you fulfill the obligations imposed by this Law in a timely manner:
- allocate and create jobs for the employment of persons with disabilities, including special jobs taking into account individual rehabilitation programs;
- provide employment services with the information necessary for organizing employment - reporting according to form No. 3-PN "Information on labor demand (vacancies)" - no later than 3 working days from the date of opening the vacancy;
- timely (by April 15 each year) pay administrative and economic sanctions to the territorial bodies of the Social Protection Fund in case of failure to meet the standard.
As we can see, the implementation of the standard for the employment of persons with disabilities has its own peculiarities, in particular, in terms of compliance with the deadlines for informing the relevant authorities about the fulfillment of such an obligation. Therefore, to properly implement the standard and avoid possible administrative and economic sanctions, contact the lawyers of our law firm, who will help to understand all the nuances and ensure that your enterprise complies with current legislation.
