Does the Employer Have to Pay Salary to a Mobilized Employee: Supreme Court Decision
Since July 19, 2022, employees serving in the military are only guaranteed their job position and workplace. Employers are not obligated to pay average earnings. This decision was made by the Supreme Court in the ruling dated May 27, 2026, in case No. 642/1929/24.
Case circumstances
The dispute arose between employees and the Kharkiv Metro Municipal Enterprise. In 2021, employees were released from work during their military service under contract. At that time, part 3 of article 119 of the Labor Code was in effect, which provided for the preservation of the job position, workplace, and average earnings.
After the entry into force of Law No. 2352-IX, the employer issued an order to stop calculating average earnings from July 19, 2022.
The employees filed a lawsuit demanding that the enterprise be obliged to calculate and pay average earnings for the period from July 19, 2022, until the day of discharge from military service.
The courts of first and appellate instances denied the claim. The Supreme Court upheld these decisions.
Supreme Court's conclusion
The Supreme Court noted that Law No. 2352-IX amended part 3 of article 119 of the Labor Code and removed the guarantee of preserving average earnings.
The Court emphasized:
- the employer's obligation to preserve average earnings was valid until July 18, 2022, inclusive;
- starting from July 19, 2022, there are no legal grounds for such payment;
- an employee does not perform work under the employment contract during military service;
- salary is paid for work performed, whereas a serviceman receives monetary allowance at the place of service.
Separately, the Supreme Court referred to the Cabinet of Ministers resolution dated 28.02.2022 No. 168, noting that financial support is provided through the mechanisms of monetary allowance for servicemen, not by the employer. Article 58 of the Constitution of Ukraine regarding the irreversibility of laws over time was also mentioned.
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