December, 2017

Currently, most companies send their employees on business trips to another city or country in order to perform production-related work.  However, there often occurs situations when an employee refuses to go on a business trip.  What should be done in this situation and what regulations should be used for guidance in order to avoid any negative consequences, both for the employer (in the form of penalties imposed by regulatory bodies) and for the employee.  This article shall address this very subject.

First of all, let’s examine what is actually covered under the concept of “business trip”.  According to the law, a business trip is when an employee, by order of the company’s head, travels to a different location for a certain period of time in order to perform work-related duties that are to be performed outside of the employee’s permanent work place.

To date, there is actually no regulatory document that should regulate business trips for privately owned companies.  The provisions of Instruction on business trips within Ukraine and abroad no. 59 (hereinafter referred to as the Instructions) apply only to companies that are financed from the state budget.

Therefore, the contents of the provisions of these Instructions can be applied to non-state companies in the case that they are registered in a collective agreement or if they are taken as a regulatory framework for the creation of a separate provision regarding business trips for the company.

At the same time, the company owner or an authorized authority thereof may not require an employee to take a business trip in order to carry out work that is not connected with his specified employment duties, according to Article 31 of the Labor Code of Ukraine (hereinafter referred to as Labor Code).  In such cases, business trips should only be assigned pending the employee’s consent.

It is worth noting that there is a category of employees, whose can only be sent on business trips with their consent.  This provision applies to women who have children aged between three and fourteen years of age or else who have disabled children (according to Article 177 of the Labor Code).  Companies are also prohibited from sending pregnant women (receiving care from a medical institution) on a business trip, as well as women with children under the age of three years old (under Article 176 of the Labor Code).  These social guarantees also apply to single fathers raising children without a mother (including those cases involving the mother’s lengthy hospitalization), as well as people holding legal status as a child’s guardian (trustee) or foster parent.

In spite of the regulations regarding the company’s own provisions regarding the approval of business trips, there exists situations when an employee refuses to go on a business trip.  Taking into account the requirements of Article 21 of the Labor Code, an employee is obliged to perform the work stipulated under his or her employment contract, including subordination to internal labor regulations.  Thus, one of the employee’s duties entails carrying out orders from the company’s head and resolving the work-related challenges stipulated under the terms of his or her employment contract.  In other words, the employer has the right to send an employee on a business trip.

However, in the case that an employee still refused to go on a business trip, he or she must specify a good reason for refusing to do so.  In this case, it is up to the employer to determine whether or not the employee’s reason for refusal to travel is valid.

To date, it has not yet been clearly established, the form by which it is necessary to record an employee’s refusal to partake in a business trip.  The best way to register at the moment is to get the employee to submit a written statement indicating the reasons for refusing to go on the business trip.

In particular, some good reasons for refusal to travel include the fact that the employee is ill, supported by medical documentation such as a medical certificate or doctor’s note.

As for the employee’s personal reasons for refusing to partake in a business trip (i.e. a birthday or family circumstances), there are currently no legal grounds for an employee to cancel a business trip for personal reasons.  Accordingly, the employee has the right to decide as to the employee’s possibilities regarding a business trip.

What measures can be taken by an employer in the case that an employee lacks a valid reason for refusing participation in a business trip?

If the employee lacks a good reason for denying participation in a business trip, but refuses to go nevertheless, this can be interpreted that the employee is at fault for failing to fulfill his assigned work duties.  In this case, the employer may apply disciplinary action, in accordance with Article 147 of the Labor Code.  The kind of a disciplinary sanction to be applied depends on the material and other negative consequences resulting from the employee’s refusal to go on the business trip.   If, after being subjected to penalties for the unjustified refusal to partake in a business trip, the employee continues to refuse to go on business trips, then the company may impose a penalty for the second time, in the form of his or her dismissal, in accordance with Paragraph 3 of Article 40 of the Labor Code.  In this case, it is necessary to document the fact that such misconduct has occurred (e.g., a memorandum by the employee’s own line manager and a written request by the employee, indicating the reasons for refusal to travel).

In order to have a legitimate reason for sending an employee on a business trip, the company’s owner or authorized body is obliged to clarify all of the employee’s his rights and duties at the time of concluding the respective employment contract.

Also, in order to avoid many misunderstandings between the employer and the employee being sent on the business trip, it is expedient to approve the company’s Regulation on business trips.  This will simplify the procedure for registering orders regarding business trips, as it will no longer be necessary every time to describe the procedure for sending employees on a business trip, its registration, determining the time period, financial remuneration, and reporting on the results of the business trip.  Thereafter, it will be sufficient for the text of the order to make reference to the Regulation.

Since a business trip is connected with the employee’s performance of his or her job duties, working regime and conditions, and financial remuneration, it is necessary to introduce all workers who may be sent on business trips, to the provisions of this Regulation in writing.

The Regulation on business trips may be approved as a separate internal document and can be part of the collective agreement.  If the Regulation is a single document, it shall be approved and put into effect on the basis of the order.

Thus, the requirements of employer’s business trips are considered lawful subject to the above-mentioned requirements.  The refusal to participate in a business trip can only be deemed a violation of labor discipline in those cases where the employee lacks a valid reason refuses to travel for business purposes in order to fulfill the particular job duties stipulated in his or her employment contract and the company’s own internal regulations.

Author: Svetlana Montrezor

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2017-12-29T13:46:53+00:00 29.12.17|HR management|