Appraisal as a tool to control professionalism of workers

Publications

Yurist&Zakon, No. 26, 25th of July, 2019.

Ilya Kostin, partner, attorney-at-law

Yaroslav Furiaka, associate

Legal Alliance Comany while providing comprehensive legal services to clients, including in the area of labor law, often faces a need to form, improve or verify the adequacy of the system of assessment of the professionalism of employees in order to avoid potential violations of the rules of work and compliance, as well as to ensure the proper productivity and efficiency of work.

In practice, this issue is resolved through the performance appraisal of employees, whereby relevant employees can be promoted, referred for training and dismissed. However, the registration of such a procedure with the internal organizational and regulatory documents of the employer is usually imperfect, and sometimes does not comply with the current legislation of Ukraine.

Under what conditions the employer may require employee appraisal:

if the company is part of an international group of companies, receives foreign investments or is a contractor of foreign commercial entities, in connection with which the business is “sensitive” to the protection of personal data, anti-corruption, antitrust and other compliance policies;
if the activity of the company requires employees to have a thorough knowledge of specialized work procedures, the observance of which directly affects the results of the work, and also if the peculiarities of the company's activity require obtaining permits for its conduct;
if the company wishes to have a legitimate opportunity to dismiss an employee as a result of the employee's non-compliance with the position, or to apply disciplinary action;
if the company wishes to have a reasonable opportunity to carry out internal reorganization with changing essential working conditions.

At present, the issue of assessing the professionalism of employees is regulated by only one legal act - Law of Ukraine "On Professional Development of Employees" (hereinafter - the Law). According to the law, appraisal refers to the procedure of assessing the professional level of employees with qualification requirements and job responsibilities, assessing their professional level. Among other things, the Law dedicates to appraisal only three articles that are more restrictive than create the conditions for appraisal in the realities of today.

In particular, the Law determines the following mandatory:

appraisal should be carried not more than once in three years;
there must be internal regulatory act or collective agreement, with established categories of employees who are appraised;
apprval of the regulation on the performance of appraisal, which defines the composition of the qualification commission, the schedule of appraisal;
formation of a commission of highly qualified specialists and a representative of the elected body of the primary trade union organization (if any);
ban on participation in the appraisal commission of a direct manager of the employee who undergoes the appraisal;
informing employees about the performance appraisal at least two months before it;
conduct of appraisal in the presence of an employee;
a letter of reference should be drawn by the employee's direct supervisor and submitted to the commission not later than one week before the appraisal;
prohibition of the employee's assessment on the grounds not related to his work;
decision-making by a simple majority of the present members of the commission through open voting;
at least two thirds of the commission members must be present at the appraisal process;
the decision of the commission must be published not later than three days after its adoption;
adherence to the prohibitions regarding the involvement to appraisal of certain categories of employees (employees who work less than one year, pregnant women, persons caring for a child under 3 years of age, a child with disability, a person with a disability since childhood, single parents with children under 14 years, minors, part-time workers).

Most of these legal requirements (such as restrictions on the frequency of appraisal) do not currently meet market conditions and significantly restrict the employer from exercising control over employees' professional skills. This requires the employer and us, as attorneys involved in the development of the relevant regulations and procedures, to resort to more sophisticated constructions which, as a result, will allow us to freely establish the mode and procedure for performance appraisal.

According to the Law, an employer planning to carry out employee appraisal must have an internal act, which defines the general provisions for the appraisal, as well as each time adopt the regulation for appraisal with fixing the composition of the commission and the schedule of the appraisal. Despite the rather loose regulation of the procedure of employee appraisal, we recommend additionally to stipulate by internal regulatory act the procedure and terms of its implementation, the possibility and the procedure for appealing the decisions of the commission. Legislation on composition of the commission also require clarification.

If prohibition on participation of the immediate manager of employee in the appraisal commission is a logical restriction aimed at excluding subjective assessment of the employee, the necessity of engaging highly qualified experts to the appraisal can give rie to the question whether the engaged members of the commission meet requirements. Thus, the Ukrainian legislation does not define highly qualified experts, however, nalysing specialised regulatory acts we presume that they are persons with finish higher education and at last 5 years of the relevant professional experience. It also should be noted that it is not required that such experts be in labour relations with the employer, which allow engaging members of the commission from outside.

Upon the appraisal the commission can make a positive decision (on compliance of the employee with the position or work) and negative one (on noncompliance with the position or work).

In the first case the employer can promote the employee, establish/increase salary bonus or leave all the preexisting conditions of work. In the second case – upon the employee's consent, transfer the latter to another position or work, or for professional training at the employer's expense with further re-appraisal.

The employer can send the employee who does not comply with the position for training to the corresponding training centers, upon attendance of which the employee will obtain a document of the established form (formal training), or engage own or external experts for raising professional and qualification level (non-formal training). Results of non-formal training must be confirmed by a recognition centre, however currently confirmation of such results works only for the profession «Cook». It makes it imposible to confirm results of non-formal education in other professions, therefore this matter is completely within competence of the employer.

In case of refusal of the employee to from transfer or study, the employer has the legal right to dismiss the employee under paragraph 2 of Article 40 of the Labor Code of Ukraine.

Therefore, despite a number of legal restrictions, appraisal as a specific employer's tool for controlling the professionalism of employees may still be lawfully put into practice. However, in order to fully apply it in modern realities and to avoid possible violations of current labor law, documenting the organization of the appraisal procedure requires a sufficiently detailed and verified preparation of internal documents of the employer, and in the case of such a procedure in the company - its evaluation by lawyers have the experience of proper examination of the conformity of the existing appraisal procedure with the requirements of the current legislation and suggest possible ways of its improvement.