Double Calculation of Employment Record for Healthcare Workers in Ukraine
Did you know that employment in certain positions may entitle a person to have the relevant period of work counted at a double rate for pension purposes? The Law of Ukraine “On Pension Provision” provides that employment in leprosy and anti-plague healthcare institutions, institutions (departments) providing treatment to persons infected with the human immunodeficiency virus (HIV) or suffering from AIDS, other infectious disease healthcare institutions (departments), pathology and intensive care departments of healthcare institutions, as well as institutions providing psychiatric care, is counted towards the employment record at a double rate. However, in practice, the Pension Fund authorities often disregard this provision, resulting in pensioners receiving lower pension payments.
Ms. Brynza approached us with precisely this problem. She had worked for 26 years and continued to work in an infectious disease healthcare institution – an anti-tuberculosis dispensary. While already receiving a pension and being aware of the possibility of having her employment record calculated at a double rate, she applied to the Pension Fund for a pension recalculation. It turned out that the Pension Fund had counted at a double rate only the periods of her employment before 1 January 2004 – approximately 6 years – while the periods after 1 January 2004 had been counted at the standard single rate. The Pension Fund based its position on the assertion that, starting from 1 January 2004, under the Law of Ukraine “On Compulsory State Pension Insurance”, the double calculation of employment periods applies only for the purposes of determining entitlement to an old-age pension on preferential terms and a pension for years of service.
As a result, a 20-year period of Ms. Brynza’s employment was not counted at a double rate, which prevented her from receiving a substantial increase in her pension.
Having analysed the situation and the client's documents, we decided to file a claim with the court. Our legal position was based on the following arguments.
Article 60 of the Law of Ukraine “On Pension Provision”, which provides for the right to have the relevant periods of employment counted at a double rate, remains in force. At the same time, the provisions of the Law of Ukraine “On Compulsory State Pension Insurance” neither repeal the provisions of the aforementioned Law nor suspend their application.
Moreover, the current provisions of the Law of Ukraine “On Compulsory State Pension Insurance”, which stipulate that preferential calculation of employment periods applies only for the purposes of determining entitlement to a pension, restrict the scope of Ms. Brynza’s existing rights. This constitutes a violation, in particular, of Article 22 of the Constitution of Ukraine.
All our arguments were supported by the relevant case law of the Supreme Court.
Having considered the case, the court of first instance fully supported our position and confirmed that the Pension Fund had unlawfully failed to count Ms. Brynza’s periods of employment at a double rate. Consequently, the court ordered the Pension Fund to count Ms. Brynza’s periods of employment from 1 January 2004 towards her employment record at a double rate.
It should be noted that the Pension Fund exercised its right to appeal the judgment. However, the appellate court also ruled in our favour and upheld the lawfulness of the judgment of the court of first instance.
After obtaining the court judgment, which had entered into legal force, we applied to the Pension Fund for its enforcement. As a result, Ms. Brynza’s pension was recalculated and increased by UAH 5,000.
The court judgment is available at the following link: https://reyestr.court.gov.ua/Review/109850666.
