Martial Law Changed the Rules of Downsizing: The Supreme Court Confirmed the Employer's Right to Change Job Requirements

Labor disputes become especially relevant under martial law, particularly when employers alter organizational structures, create new positions with additional security functions, and establish new qualification requirements.

The Supreme Court, specifically a panel of judges from the First Judicial Chamber of the Cassation Civil Court, considered a dispute in case No. 591/7260/25 concerning the legality of an employee's dismissal due to staff reduction and the employer's obligation to offer alternative employment.

Case Circumstances

The plaintiff had been employed since 2020 as Vice-Rector for Infrastructure Development and Resource Support at Sumy State University.

In March 2025, the university decided to eliminate this position. This decision was attributed to organisational changes prompted by military aggression, reduced financial inflows, decreased workload, and the need to optimise the management structure. The employee was duly notified of the impending dismissal and offered available vacant positions.

The plaintiff contended that the dismissal was unlawful. In his view, the employer failed to fulfil its obligation to provide alternative employment because it did not offer the newly created position of Vice-Rector for Security and Economic Support. He further argued that the new position essentially duplicated his previous functions, rendering the downsizing merely a formality.

The university countered the claim, asserting that the new position had distinct functions related to security, mobilisation work, interaction with Territorial Centres for Recruitment and Social Support (TCRSS), military administrations, civil protection, and shelter operation.

Furthermore, filling this position required a mandatory qualification of a second-level higher legal education, which the plaintiff did not possess.

Both the courts of first instance and appellate instances dismissed the claim, after which the employee lodged a cassation appeal.

Supreme Court's Position

The Supreme Court indicated that the court cannot discuss or evaluate the advisability of staff reduction or the number of employees, as the right to determine staff size rests with the owner or authorised body.

However, the court does verify the legality of dismissal grounds and compliance with dismissal procedures, including the absence of discrimination.

The court noted that, according to part one of article 40 and parts one and three of article 49-2 of the Labor Code of Ukraine, the owner or authorised body, simultaneously with the dismissal notice, is obliged to offer the employee all available vacant positions that the employee is qualified to occupy.

An employer is deemed to have fulfilled this obligation if the employee was offered all other vacant positions (alternative work) that emerged during the entire period and existed on the day of dismissal.

The Supreme Court stated that the owner is considered to have properly fulfilled the requirements of part two of article 40 and part three of article 49-2 of the Labor Code of Ukraine regarding employee employment if they offered the employee available work at the enterprise, i.e., a vacant position or work corresponding to their profession or specialty, or other vacant work the employee can perform considering their education, qualifications, experience, etc.

The court noted that it was established by the lower courts that the qualification requirements for the position of Vice-Rector for Security and Economic Support included possessing a higher legal education. Therefore, such a position could not be offered to the plaintiff under the requirements of part two of article 40 and part three of article 49-2 of the Labor Code of Ukraine, as it did not align with his education and qualifications.

At the same time, an employee's desire to be transferred to a specific position does not create an obligation to do so if their qualifications do not match the role.

The court stated that the specific list of job duties is determined by job descriptions developed and approved by employers, taking into account the particular tasks and features of the enterprise's activities.

The continuous development of science and technology necessitates reviewing job descriptions and redistributing duties among employees due to staff reductions, all with the aim of optimising and increasing enterprise efficiency. Thus, an employer has the right to independently determine the specific list of duties, requirements, functions, rights, and responsibilities of employees.

The Supreme Court indicated that, having established a requirement in the job description for a second or equivalent level of higher legal education, which the plaintiff did not possess, the courts reasonably concluded there were no grounds for his transfer to the newly created position. Such requirements do not contradict the Directory of Qualification Characteristics of Employee Professions.

The court noted that establishing a legal education requirement for a manager responsible for mobilisation work and interaction with authorities under martial law is a justified right of the employer.

Concurrently, the functional duties of the new position differ from the eliminated one, as they include legal support of military registration and mobilisation preparation, coordination of interaction with TCRSS, military administrations, ensuring shelter operation, civil protection, and management of the military-mobilisation department.

The court emphasised that such changes are caused by martial law conditions, require different qualifications, and indicate changes in work organisation.

Therefore, the Supreme Court dismissed the cassation appeal and upheld the decisions of the lower courts.

The ruling is important for the future application of articles 40 and 49-2 of the Labour Code of Ukraine, as it confirms an employer's right to create new managerial positions with new functions and qualification requirements if these are necessitated by genuine changes in work organisation and do not contradict the law.

Additionally, read when downsizing is lawful: The Supreme Court explained guarantees for employees. You can also learn about when unlawful dismissalcan cost an employer several years of an employee's salary — Supreme Court

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