Around the world people are deeply shocked and saddened about the escalating war in Ukraine.
Many employers are increasingly concerned about the wellbeing of their employees, particularly those from Ukraine or other Eastern European countries and are considering how to best support refugees. Employers with operations in Russia are also dealing with the impact of the sanctions.
In this article we highlight some of the legal and practical implications of the conflict for the employment relationship. While it is written from a UK perspective, employers in other countries will likely be facing similar issues.
In the UK there are specific arrangements for individuals who are called up to UK reserved armed forces. While these do not apply to nationals of other countries being called up for military service by their home country, employers might want to follow a similar approach. In this article, we set out considerations relating to non-UK nationals who are called up to active duty by their home country and also considerations relating to other nationals who wish to take part in the conflict.
Due to the escalating conflict and dangerous situation, many employers are helping workers to relocate to safety outside Ukraine. Some employers are providing workers with options for border crossings and/or helping with applications for refugee or asylum status in other countries. Employers should be careful not to help workers leave Ukraine in breach of the recent military conscription order prohibiting men aged 18 to 60 years from leaving the country.
Many countries are amending or relaxing visa and other entry requirements for Ukrainian nationals.
EU Member States are currently implementing the Temporary Protection Directive (the Directive), which allows Member States to authorise temporary residency on humanitarian grounds for Ukrainian citizens and eligible Ukrainian residents leaving Ukraine. The Directive is explained here.
In the UK, the Home Office has put in place immediate concessions and has implemented two new immigration schemes for Ukrainian nationals in response to the conflict, which we covered in this article and this guide.
Under the Ukraine Family Scheme, Ukrainian citizens and their eligible family members are able to join an eligible UK-based family member. Under the Homes for Ukraine Scheme, individuals with at least six months’ immigration permission in the UK are able to act as sponsors for Ukrainian refugees and their immediate family members, if they are willing to offer them a room in their home or separate self-contained accommodation for a minimum period of six months. Details for sponsorship by businesses and other organisations will be released at a later date.
Under both the Ukraine Family Scheme and the Ukraine Sponsorship Scheme, successful applicants will be granted immigration permission for up to three years.
The UK Ukrainian schemes currently provide immigration permission outside the UK’s immigration rules and will be written into the immigration rules in the near future. Other displaced groups have received different treatment and must make either an asylum or humanitarian protection claim. It is possible, therefore, that this disparity of treatment will become a political issue in the future.
Many employers are considering how to best support or employ Ukrainian refugees. For example, a large number of employers have formed a consortium to help connect Ukrainians arriving in the UK to secure employment opportunities. Little detail has emerged of how this will be achieved, which is presumably due to discrimination laws in the UK significantly limiting the extent to which employers can prioritise one nationality over another.
UK employers should tread carefully if they are considering prioritising Ukrainians for roles or potentially ring-fencing employment opportunities for them. They may face direct or indirect discrimination claims for giving preferential treatment to Ukrainians over other nationalities or even for giving preference to the broader category of people with the right to work in the UK under a humanitarian scheme. There is currently no indication that amendments will be made to the UK discrimination legislation, in relation to Ukrainian refugees, to limit employers’ potential exposure to uncapped damages and awards for injury to feelings for discrimination claims.
The UK discrimination legislation allows employers to take ‘positive action’ to support people who are suffering a disadvantage or have particular needs. Given the harrowing circumstances under which Ukrainians have fled to the UK, leaving behind their homes, family members and jobs, there is likely a strong argument that Ukrainian nationals can be said to suffer a disadvantage and/or have particular needs.
What options are feasible will, of course, depend on the resources and structure of the employer in question, but some options that could be considered within the framework of positive action are:
Whilst employers have limited scope to offer employment on the basis of nationality, charities have more scope to provide support (if not employment) to Ukrainian refugees. Therefore, donating to relevant charities could be a positive way to assist refugees without bearing the risks associated with the measures considered above. Some employers are also giving their employees time off to volunteer for a charity or to prepare for receiving refugees into their home.
Employers with operations in Russia may be dealing with requests from Russian workers to leave Russia, which raises considerations of an employer’s duty of care towards its workers in Russia.
Employers may also be considering repatriating foreign or ‘expat’ workers they have sent to Russia. The ability to do so will likely be included in the worker’s contract or assignment, with repatriation costs borne by the employer. Relocating these employees to other jurisdictions causes other legal issues, which are covered below.
Russian citizens are currently still able to make UK entry clearance applications. However, those who have already fled outside Russia may not be able to have their application approved if they apply from a country they are present in as a visitor. This is because for many immigration categories, the applicant must apply from a country they are ‘living’ in. Some immigration-related services in Russia, such as English-language testing, may also be suspended. Where a person cannot meet the requirements of the UK’s immigration rules in full, it is possible for discretion to be exercised to waive a requirement, however the Home Office may not be inclined to do this due to the sanctions currently being in force against Russia.
Applications for Russian citizens may also be delayed if an application is considered to be complex or if additional security checks are carried out.
The Nationality and Borders Bill that is currently progressing through the UK Parliament contains provisions to impose visa penalties on countries the Home Secretary considers to have taken action that:
Once the relevant provisions of the Bill are commenced, it is possible that visa penalties could be written into the immigration rules that would mean that entry clearance applications made by Russian citizens could be stopped from being granted, could be held to be invalid or could require an additional fee of GBP 190 to be paid. The penalties would not be applied to any applications in process before the date the rules are amended.
The sanctions imposed on Russian corporate entities and the related restrictions on international financial transactions are affecting the ability of employers (with Russian entities) to pay their Russian workforces. This is leading some employers to consider various options including declaring a ‘downtime’, encouraging employees to take annual leave, making employees redundant and potentially, closing their operations in Russia. Russian employment law advice should be taken on these options.
The relocation of Ukrainian and Russian workers to other countries could lead to employers finding that they have workers in locations where they previously had no presence. Employees may gain certain employment rights in these countries, particularly where they work in the country for some time. Employers should also consider whether an employee’s stay in a country creates an income tax or social security liability for the employer and also, potentially, whether the employee’s activities or presence in the host country will create a permanent establishment for the employer in that country. From a UK perspective this would be the case if, for example, the employee has a sales or business development role and is habitually exercising the authority to conclude contracts in the name of the employer while in the host country. Local rules may provide for a more expansive definition of a permanent establishment. We covered these issues here.
The situation in Ukraine is very distressing for many people and it may also cause conflict in the workplace between those with different views (for example, workplaces with Ukrainian and Russian employees). Employers should consider ways to support their Ukrainian, Eastern European and Russian nationals, or indeed employees from any nationality who feel affected by the events. For example, this will include reminding staff of policies on bullying and harassment and being prepared to deal with potential conflicts between employees who may have opposing views on the events in line with these policies, including taking disciplinary action if necessary.
Fore more information about foreign workers