Restored Right to Work for School Teachers of Retirement Age

On February 7, 2023, the Constitutional Court of Ukraine concluded that paragraph three, part 2 of Article 22 of the Law of Ukraine No. 463–IX “On the Upper General Secondary Education” of 16 January 2020 does not comply with the Constitution of Ukraine and shall lose its effect from the day of adoption of the decision by the Constitutional Court.

Under Article 22, teaching staff of state and municipal institutions of general secondary education who have reached retirement age and are paid an old-age pension had to work on the basis of short-term employment contracts concluded for one to three years.

The Court ruled that in accordance with the requirements of the Law and national labor legislation, teaching staff of educational institutions shall be hired under an employment contract, as a general rule, by concluding an open-ended employment contract, that is, an employment contract for an indefinite period.

Labor Initiatives welcomes such a decision as the LI legal clinic has addressed a sheer number of cases regarding short-term employment contracts with school teachers. They faced discrimination and unequal treatment from the school managers. Short-term contracts did not provide any stability in employment relations, and their conclusion (extension) often became a ground of extortion and abuse of power. 

In examining the case raised in the constitutional petition, the Constitutional Court proceeded with the fact that upper general secondary education is mandatory. This rule imposes a positive obligation on the state to implement responsible state policy in the sphere of education, particularly in ensuring the educational institutions with qualified pedagogical staff, both with experienced teachers and those workers who have just begun their pedagogical activity. 

“Only by ensuring an optimal balance in providing educational institutions with both young qualified workers and experienced teachers, the state can realize its task of organizing an effective education system”, reads the Decision. 

Therefore, the state should create relevant conditions for comprehensive, fundamental training of young education workers and, at the same time, for the preservation of the existing personnel resource of the experienced teaching staff, in particular those of them who, regardless of the specific age, comply with the professional qualification requirements and are able to carry out pedagogical activities taking into account their physical and mental health.

In its earlier decisions, the Constitutional Court stated that “freedom to work means a possibility of an individual to work or not to work; and if he or she chooses to work, then to freely choose it, ensuring to everyone without discrimination to enter into employment relations in order to implement one’s capabilities”. That is, the possibility to freely choose a type of work and to voluntarily enter into employment relationships means freedom of choice of an individual who seeks to obtain a legal status of an employee, in particular, a free choice of a type of labor contract. 

In its previous decisions, the Constitutional Court noted that “freedom of labor means the ability of a person to work or not to work; and if a person decides to work, then freely choose it, ensuring everyone access to employment relations without discrimination.” That is, the ability to freely choose the type of work and voluntarily enter into an employment relationship means the freedom of choice of a person who seeks to acquire the legal status of an employee, in particular, the free choice of the type of employment contract.