List No. 1 Pension in Ukraine: How We Challenged the Pension Fund’s Refusal
As a general rule, persons who have reached the age of 60 and have the required insurance record are entitled to an old-age pension in Ukraine (in 2022, the required insurance record was 29 years). However, persons employed in harmful and particularly harmful working conditions under List No. 1 or List No. 2 are entitled to preferential retirement conditions, including a reduced retirement age. For example, men may retire at the age of 50 if they have at least 25 years of insurance record, including at least 10 years of employment under List No. 1, or at the age of 55 if they have at least 30 years of insurance record, including at least 12 years and 6 months of employment under List No. 2.
The legislation provides that an employment record book should contain information enabling the preferential nature of a person’s work to be established. If such information is absent, the person may be required to provide an additional certificate from the employer confirming the nature and conditions of the work. In practice, however, when considering applications for preferential pensions, the Pension Fund authorities frequently require such additional certificates. If the certificate is not provided, the relevant period of employment may simply be excluded from the preferential employment record.
Mr. Oliinyk approached our law firm with a similar problem. He applied to the Pension Fund of Ukraine for a preferential old-age pension under paragraph 1 of part 2 of Article 114 of the Law of Ukraine “On Compulsory State Pension Insurance”. However, the Pension Fund refused to grant him a pension on the grounds that he allegedly did not have the required preferential employment record. The reason was the exclusion of a period of approximately five years during which he had worked as a glass melter because he had not provided an additional certificate confirming the preferential nature of the work.
Having analysed all of the client's documents, we concluded that the refusal to grant the pension was unlawful and that Mr. Oliinyk was indeed entitled to a preferential pension. Our lawyers prepared a statement of claim setting out the relevant legal arguments.
First, the occupation of glass melter is included in List No. 1 of industries, jobs, professions, positions and indicators involving underground work and work performed under particularly harmful and particularly difficult working conditions, employment in which entitles a person to an old-age pension on preferential terms, as approved by Resolution No. 10 of the Cabinet of Ministers of the USSR dated 26 January 1991 and Resolution No. 162 of the Cabinet of Ministers of Ukraine dated 11 March 1994.
Second, Mr. Oliinyk’s employment record book contained all the information necessary to establish his entitlement to a pension on preferential terms. The entries concerning his period of employment as a glass melter themselves contained information about the nature and conditions of the work corresponding to List No. 1. Additional certificates confirming special employment periods or other supporting documents are required only where the employment record book does not contain the necessary information.
After considering the case, the court of first instance partially upheld Mr. Oliinyk’s claims. The court agreed that the Pension Fund’s refusal was unlawful and accepted the evidence submitted on his behalf. However, it did not order the Pension Fund to include the disputed employment period in his preferential employment record and grant the pension. Instead, the court ordered the Pension Fund to reconsider Mr. Oliinyk’s pension application.
We disagreed with this part of the judgment and decided to file an appeal. Our position was based on the following arguments.
First, the Supreme Court has repeatedly emphasised in its case law that an “effective remedy” must ensure restoration of the violated right and enable the person to obtain the result to which they are legally entitled.
Second, merely ordering the Pension Fund to reconsider Mr. Oliinyk’s application could result in another refusal and, consequently, a further violation of his rights. Therefore, such a remedy could not be regarded as proper and effective protection of the claimant’s rights.
Third, given that all the statutory conditions had been satisfied, the Pension Fund had only one lawful course of action – to include the disputed period of employment in Mr. Oliinyk’s preferential employment record and grant him the pension. Accordingly, in these circumstances, the Pension Fund did not have discretion to choose a different outcome.
The appellate court fully agreed with our position. As a result, it issued a judgment ordering the Pension Fund to include the disputed period of employment in Mr. Oliinyk’s preferential employment record and grant him a preferential pension.
After the court judgments were delivered, our law firm was able to secure their prompt enforcement. As a result, Mr. Oliinyk was granted a preferential pension. All pension arrears accumulated during the court proceedings were also paid to him in a single payment.
