Lidiya Sangarovskaya, Legal Alliance Company, senior associate
Kristina Demchenko, Legal Alliance Company, junior associate
Recently we have learned the results of the elections in France, which confirmed the fears of political scientists regarding the failure of one of the candidates, former French Prime Minister Francois Fillon, to go to the second round, associated with scandalous information about his wife being hired as an assistant during Francois Fillon's tenure as a people’s deputy. The question in this case concerned, first of all, suspicions of the fictitiousness of labor relations as such, rather than the very fact of direct subordination. Ukrainian legislation also places other, equally important accents in such situations, which lawyers of Legal Alliance employment and labor practice constantly face.
Thus, Article 27 of the Law of Ukraine "On the Prevention of Corruption" establishes restrictions on the joint work of persons being in close relationship (currently in the public sector), which are as follows:
1) a separate category of persons, for example, the President of Ukraine, civil servants, local self-government officials, judges, military officials of the Armed Forces of Ukraine, officials and officers of the prosecutor's office, members of the National Agency for the Prevention of Corruption, members of the Central Election Commission and police officers cannot directly supervise persons who are in close relationship with them or be directly subordinated to such persons at work.
2) persons applying for such positions are obliged to inform the management of the body, for the position in which they apply, of the persons close to them who work in such a body.
At the same time, persons being in close relationship stand for persons who live together, are connected by common life and have mutual rights and obligations with the person concerned (except for persons whose mutual rights and obligations with the person concerned are not family-like), including persons who live together, but are not married, and, regardless of the indicated conditions, husband, wife, father, mother, stepfather, stepmother, son, daughter, stepchild, stepdaughter, brother, sister, grandfather, grandmother, great-grandfather, great-grandmother, grandson, granddaughter, great-grandson, great-granddaughter, son-in-law, daughter-in-law, father-in-law, mother-in-law, adoptive parent or adopted child, guardian, a person who is under the tutelage or guardianship of the said person ( Article 1(1)(4) of the Law of Ukraine "On the Prevention of Corruption").
If this direct subordination is revealed, such persons, as well as their close relatives must take actions aimed at eliminating violations of this restriction within 15 days (Article 27(2)(1) of the Law of Ukraine "On the Prevention of Corruption").
If such persons have not taken any steps, there are two solutions:
A) a person concerned or his/her close relative will be transferred in the established manner to a different position, which will exclude direct subordination. The transfer must be made during one month (Article 27(2)(2) of the Law of Ukraine "On the Prevention of Corruption");
B) if such a transfer is not possible, the subordinated person will be dismissed from his/her position (Article 27(2)(3) of the Law of Ukraine "On the Prevention of Corruption").
It should also be noted that the Labor Code of Ukraine provides that being directly subordinated to a close relative contrary to the Law of Ukraine "On the Prevention of Corruption" is one of the additional grounds for termination of an employment contract on the initiative of an owner or a body authorized by him (Article 41(1)(4) of the Labor Code of Ukraine).
In the private sector, conditions of hiring and, as a consequence, direct subordination of close relatives are more lenient. Otherwise, it would be difficult to imagine traditional family cafes, craft workshops and other small businesses. However, for large and, especially, international companies, such direct subordination is usually unacceptable from corporate culture standpoint.
It is for such cases that the legislator stipulates that an owner has the right to impose restrictions on joint work at the same enterprise, institution and organization for persons who are close relatives or in-laws (parents, spouses, brothers, sisters, children, as well as parents, sisters and children of spouses), if they are directly subordinated to or controlled by each other at the performance of their job duties (Article 25-1(1) of the Labor Code of Ukraine).
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