Civil Servant Suspended Due to Lack of COVID Vaccination — She Won a Payment of 64,000 UAH

The Sixth Administrative Court of Appeal confirmed the illegality of suspending an employee of the State Space Agency of Ukraine due to the absence of COVID-19 vaccination and upheld the decision to recover her average salary for the period of forced absence. The court emphasized that although the legislation at the time of the dispute allowed for mandatory vaccination and suspension of certain categories of employees, the employer had to prove the necessity and proportionality of applying such a measure to a specific individual.

The appellate instance supported the conclusions of the court of first instance, which recognized the suspension order as unlawful and awarded the employee 64,062.46 UAH of average salary for the period of forced absence.

Case circumstances

The plaintiff worked as a chief specialist in the Department of Scientific Research and Innovation of the Department of Space Policy and Development of the State Space Agency of Ukraine.

In November 2021, after the entry into force of regulatory acts regarding mandatory vaccination of certain categories of employees, the agency required employees to provide documents confirming COVID-19 vaccination or medical conclusions about contraindications. The employee did not provide such documents.

On November 8, 2021, the agency issued an order suspending her from work starting November 9, 2021, until the reasons for suspension were eliminated, but no longer than the quarantine period. In March 2022, the order was suspended due to the introduction of martial law, and in 2024 the employee was dismissed due to retirement.

Considering the order unlawful, the employee appealed to the court to cancel it and recover her average salary for the period of forced absence.

Position of the State Space Agency

The agency claimed it acted in accordance with legal requirements.

The defendant argued that civil servants of central executive bodies belonged to categories of employees for whom COVID-19 vaccination was mandatory. Since the plaintiff did not provide either vaccination confirmation or a medical conclusion about contraindications, the employer considered the suspension mandatory and directly resulting from the regulatory acts in force at that time.

What the court considered

The appellate court referred to the legal conclusions of the Grand Chamber of the Supreme Court set out in the ruling dated December 14, 2022, in case No. 130/3548/21.

The panel of judges noted that the legislation indeed provided for the possibility of suspending employees who refused or evaded mandatory preventive COVID-19 vaccinations. However, the mere existence of such a mechanism does not mean automatic legality of suspension in every case. The court must verify whether such interference was necessary and proportionate to the legitimate aim of protecting public health.

The court found that the employer did not conduct an individual assessment of the employee's job duties and did not prove the objective necessity of her personal contacts with others during work. There was also no evidence that performing her functions was associated with increased risk of infection spread or that remote or home work was impossible for her.

At the same time, the court took into account that the State Space Agency had had since 2020 a procedure for civil servants to perform tasks outside the administrative building, i.e., remote work was provided for by the institution's internal documents.

According to the appellate instance, the employer did not prove the urgent necessity of suspending the plaintiff specifically and did not justify the impossibility of applying less severe measures. Therefore, the suspension did not meet the principle of proportionality and was recognized as unlawful.

Why the payment was awarded

Since the suspension order was declared unlawful, the employee gained the right to receive her average salary for the period of forced absence.

According to the employer's certificate, her average daily salary was 831.98 UAH. The suspension period lasted from November 9, 2021, to February 28, 2022, covering 77 working days. Accordingly, the amount of average salary for the forced absence period was 64,062.46 UAH.

The court also separately noted that this amount is determined before withholding taxes and mandatory payments. Their deduction is carried out by the employer when executing the court decision as a tax agent.

Legal position of the court

The court proceeded from the fact that the legislation at the time of the dispute provided for mandatory COVID-19 vaccination and suspension of certain categories of employees. At the same time, the subject of the dispute was not the legality of vaccination itself but the lawfulness of suspending a specific employee without an individual assessment of her work circumstances.

The appellate court effectively confirmed the approach of the Grand Chamber of the Supreme Court, according to which belonging to a category of persons for whom mandatory vaccination was provided is not by itself sufficient grounds for lawful suspension. The employer must prove that such a measure is necessary and proportionate and that achieving the health protection goal is impossible by applying less restrictive measures, including remote work.

Conclusion of the appellate court

The Sixth Administrative Court of Appeal dismissed the appeal of the State Space Agency of Ukraine and left the decision of the Ivano-Frankivsk District Administrative Court in case No. 640/32515/21 unchanged.

Thus, the order to suspend the employee was finally recognized as unlawful, and her right to receive 64,062.46 UAH of average salary for the period of forced absence was preserved.

The ruling came into legal force on the day of adoption and is final. According to paragraph 2 of part five of article 328 of the Code of Administrative Procedure of Ukraine, it is not subject to cassation appeal.

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