Change of essential terms of employment and transfer during martial law

An essential role in this process is played by the Law of Ukraine, “On the Organization of Labor Relations under Martial Law” (hereinafter referred to as the Law), which establishes the procedure for regulating labour during wartime. By 2025, key positions of the Supreme Court (hereinafter referred to as SC) regarding the application of the Law’s provisions have already been formed, particularly in the context of changing essential terms of employment and transferring employees during martial Law, which we propose to review.

Change of Essential Terms of Employment

First of all, it should be noted that essential terms of employment include:

• salary system and amounts;
• benefits;
• work schedule;
• establishment or cancellation of part-time work;
• combination of professions;
• change of job grades and titles, etc.

At the same time, changing the terms of employment cannot be done without reason. The precondition for changing the terms of employment must be a change in the organization of production and work (for example, rationalization of workplaces, introduction of new forms of work organization, implementation of advanced methods, technologies, etc.).

It is important that when changing the essential terms of employment, the specialty, qualification or position must remain unchanged.

Therefore, if there are changes in the organization of production and work within the company, and there is a need to change the terms of employment for employees, then in peacetime, the employer must notify the employees no later than two months before such changes.

However, during martial Law, the Law allows employers to notify employees about changes to essential terms of employment no later than the day such terms are implemented. In practice, this means that employers may reduce salaries or, for example, establish a different work schedule, notifying employees about these changes only one day before.

In any case, it is recommended to inform the employee about these changes in writing or via communication means with evidence of sending and delivery.

Employers often face questions about whether an employee can refuse to work under the changed conditions and what the employer should do in such a case?

Indeed, an employee may refuse to continue working under the changed conditions. In this case, the employment relationship may be terminated.

The SC has issued a number of decisions confirming the right of employers not to adhere to the two-month notification period for changes in essential terms of employment during wartime, as well as to dismiss an employee who refuses to continue working under the changed conditions.

For example, according to the resolution of the SC of February 5, 2025, in case No. 757/22199/22-ц an employee filed a lawsuit against the employer to cancel orders about changing essential terms of employment and about dismissal. The lawsuit was motivated by the fact that the notification was not given two months before the changes in the salary terms, and the general director of the company had issued an order to dismiss the plaintiff for refusing to continue working due to changes in the essential terms of employment.

The courts of first and appellate instances refused to satisfy the claims. The courts applied part two of Article 3 of the Law, under which notifying an employee about changes in essential terms of employment during martial Law should occur no later than the day such terms are implemented. This legal position was also upheld by the SC.

A similar legal conclusion is contained in the resolution of the SC of May 22, 2023, in case No. 212/2542/22. According to the circumstances of this case, the employer reduced the employee’s working hours to 1 hour per week with payment proportionally to the worked time for the entire period of martial Law and changed the workplace address. The employee was notified about these changes one day before their implementation. However, the plaintiff disagreed with such conditions and was subsequently dismissed for refusing to continue working.

The SC upheld the employer’s position and stated that the employer had the right to introduce any changes in the organization of production that it deemed necessary for improving the efficiency of its activities – both across the company and in specific departments or for individual employees. Additionally, the SC confirmed that changes in the organization of production and work indeed took place, which led to a reduction in employees’ working hours. An important factor was also the fact that the employer informed the plaintiff about these changes one day before their implementation. As a result, the SC rejected the employee’s claims.

What to remember:

• changes to essential terms of employment may be deemed lawful only if changes in the organization of production and work are proven. If no such changes are introduced, the employer is not allowed to alter the essential terms of employment;
• under martial Law, the Law gives employers the right to notify employees about changes to essential terms of employment no later than the day such changes are implemented;
• a court may deem changes to employment terms unlawful if the employee was not informed or was notified improperly.

Features of Employee Transfer

A transfer of an employee is considered to be the transfer:

• to another position within the same enterprise or
• to another enterprise or
• to another location.

It is important to note that in peacetime such a transfer is only allowed with the employee’s consent.

However, during the period of martial Law, there are situations where an employer has the right to transfer an employee to another job not stipulated by the employment contract without the employee’s consent, specifically:

• if the job is not contraindicated by the employee’s health condition;
• only for preventing or eliminating the consequences of combat actions, as well as other circumstances that pose or may pose a threat to life or normal living conditions.

In the case of such a transfer during wartime the salary for the work performed may not be lower than the average wage for the previous job.

It is important that if the transfer occurs to a location where active combat actions are taking place, the employer must obtain the employee’s consent.

In case No. 343/761/23 the employer issued an order to transfer an employee to another location for the elimination of combat action consequences. However, the employee refused to comply with the transfer order, arguing the increased level of danger. As a result of the failure to perform labor duties, the employee was subjected to disciplinary action in the form of dismissal.

The SC in its resolution of March 6, 2025, stated that the lower courts had identified valid reasons for refusing to satisfy the employee’s claim, namely: such a transfer could occur without the employee’s consent, the work was not contraindicated by the employee’s health condition, and the employee was guaranteed a salary for the work performed not lower than the average wage for the previous job, as well as compensation for relocation.

Furthermore, the SC took into account that the transfer of the employee to another job was carried out to eliminate the consequences of combat actions in an area where active combat was not taking place. Therefore, the SC supported the position of the lower courts regarding the legality of the dismissal.

What to remember:

• during martial Law, an employer has the right to transfer an employee to another job not stipulated by the employment contract without the employee’s consent if the job is not contraindicated by the employee’s health condition and only for preventing or eliminating the consequences of combat actions or other circumstances that pose or may pose a threat to life or normal living conditions;
• in such a case, the transferred employee is entitled to receive a salary for the work performed that is not lower than the average wage for the previous job;
• transfer to a job in another location where active combat actions are taking place is allowed only with the employee’s consent.