Can the Pension Fund Refuse a Preferential Pension Due to No Workplace Attestation?
People approaching retirement age often encounter problems when collecting documents for a preferential pension because their employer failed to conduct the required workplace attestation. This is a relatively common situation: the employer failed to fulfil its statutory obligation, while the negative consequences of that failure ultimately affect the employee when they apply for a pension.
A similar situation arose in the case considered by the courts. The claimant applied to the territorial office of the Pension Fund of Ukraine but was refused recognition of the relevant period as preferential service because no workplace attestation had been conducted. As a result, the claimant challenged the Pension Fund’s decision in court. After proceedings before the courts of all three instances, the case was considered by the Grand Chamber of the Supreme Court, which reached an important conclusion concerning the pension rights of employees.
Failure by an employer to conduct workplace attestation should not deprive an employee of preferential pension rights.
Where employees work or previously worked under harmful or difficult working conditions covered by List No. 2, or particularly harmful and difficult working conditions covered by List No. 1, the employer’s failure to conduct the required workplace attestation should not, in itself, constitute grounds for refusing to recognise the relevant period as preferential service. Conducting workplace attestation is the employer’s responsibility, not the employee’s. Therefore, an employee engaged in qualifying List No. 1 or List No. 2 work should not bear responsibility for the employer’s failure to conduct the attestation or for conducting it late.
The Supreme Court also emphasised that an employer’s failure to conduct workplace attestation, or its failure to do so within the prescribed period, should not constitute grounds for refusing an old-age pension on preferential terms to employees who actually worked in occupations or positions covered by List No. 1 or List No. 2.
The responsibility for properly and timely conducting workplace attestation rests with the employer and the persons responsible for compliance with occupational safety and employment requirements. Consequently, the adverse consequences of failing to fulfil this obligation should not be transferred to an employee who had no control over the attestation procedure.
An employee cannot independently conduct an official attestation of their own workplace and therefore has no effective means of ensuring that the employer fulfils this obligation. At the same time, compliance with workplace attestation requirements is subject to state supervision by the competent authorities.
Therefore, the absence of workplace attestation due to the employer’s failure to conduct it should not automatically prevent periods of actual qualifying employment from being recognised as preferential service under List No. 1 or List No. 2. If the Pension Fund refuses to grant a preferential pension solely on this ground, such a decision may be challenged before an administrative court. The legal position of the Grand Chamber of the Supreme Court provides an important basis for protecting employees whose pension rights have been affected by their employer’s failure to conduct workplace attestation.
