We’ve all been watching events unfold in Ukraine with disbelief and horror. Whilst peace talks are still ongoing, the destruction of Ukraine isn’t stopping and there doesn’t appear to be an end in sight.

The Foreign Commonwealth and Development Office (FCDO) currently advises against all travel to Ukraine, including Crimea, Donetsk oblast and Luhansk oblast.  Further, there is the possibility that if an individual travels to Ukraine to fight, or to assist others engaged in the conflict, their activities may amount to criminal offences, and they could be prosecuted on their return to the UK.

So, what does this mean for employers with staff who are directly impacted by this conflict?

Notwithstanding the FCDO advice, employers may be faced with a situation where an employee wishes to offer their support to the Ukrainian or indeed Russian forces.

If employees wish to volunteer to fight, this is not something we would advise an employer to actively encourage, particularly because of the FCDO advice and the potential for criminal offences to be committed by the employee in the course of their volunteering;  ultimately, though, it is the individual’s choice and should they decide to go down this route, the appropriate employer response is likely to be that they will need to resign from their employment.

In contrast, we are seeing Ukrainian employees who have received their call-up notices and Polish employees who are being conscripted to support their country with the influx of almost 2,000,000 refugees — and who therefore have little or no choice but to respond.

If this was a call up or conscription of UK reservists, an employer would have to release the employee unless it successfully applied for the call-up notice to be deferred, revoked or for an exemption to be made (if the employer believed that the employee’s absence would cause serious harm to its business). However, there isn’t the same obligation on the employer in relation to non-UK employees. Any legalities relating to overseas military service and employment are highly unlikely to apply here in the UK. This means that an employer is not bound to release the individual who has received notice of call-up or conscription, nor to hold open their job for them when their service ends.

However:

• Employers should check to see whether they already have a reservists’ policy as they may find, quite unintentionally, that this policy also applies to non-UK reservists and specifically to those being called up/conscripted to fight in the conflict in Ukraine.  Employers should therefore use their best endeavours to ensure that their policy is applied in these circumstances.
• As there is a right already for employees in the UK to take leave and return to their employment at the end of the mobilisation period, employers should consider carefully whether not permitting non-UK employees to benefit from similar protections could amount to discrimination on the grounds of race, nationality, ethnic origins or national origins.

Additionally, potential consequences for non-UK employees who answer the call-up/conscription notice or who indeed ignore a call-up/conscription notice are severe – potentially being faced with the choice, on the one hand of leaving family behind in the UK without an income to support them, for an unknown period, or on the other hand, being faced with imprisonment should they ever return to their home country. An employer may wish to avoid a potential PR disaster, if they have given little or no thought to how this situation might be handled successfully.

If an employer wishes to respond positively and proactively here, the following options might be considered:

• A career break, where the employee resigns from their employment and is given priority for any vacancies at the end of their period of call-up/conscription. This means there would be a break in continuity of service and holiday entitlement would not continue to accrue.
• A sabbatical for a defined period, without the requirement to resign — so continuous employment is preserved, holiday entitlement accrues, and they are permitted to return to the same role or a role commensurate with that role within, say, 14 days of the end of their period of call-up/conscription ends.  There would clearly need to be conditions about keeping in touch and dismissal, with process, if they are not able to return by the end date.

It is to be hoped that the situation in Ukraine will resolve peacefully soon but if that does not happen and the conflict escalates beyond Ukraine, Russia and Poland, employers may wish to consider carefully now how they might respond.