GILS Employment Law: Kyrgyzstan

KYRGYZSTAN 

(1) Maternity and Family Leave Rights

1.1. How long is the duration of maternity leave?

70 calendar days before childbirth and 56 calendar days after childbirth (in cases of complicated childbirth or the birth of two or more children – 70 days) with payment of maternity benefits for this period in the amount established by the legislation of the Kyrgyz Republic.

1.2. What are the rights of a parent when returning to work after parental leave?

By agreement between the employee and the employer, the Employer is obliged to establish a part-time or part-time working week at the request of one of the parents (guardian, trustee) who has a child under the age of 14. Part-time work does not entail for employees any restrictions on the duration of the annual basic paid leave, calculation of work experience and other labour rights. 

Upon application, an employee is granted additional leave without pay to care for a child until the child reaches the age of three years. By agreement of the parties, parental leave until the child reaches the age of three years may be granted at any time and of any duration. 

An employee may work part-time or remotely while on parental leave. 

The specified employees retain their place of work (position) during their parental leave. 

Parental leave is counted in the total length of service, as well as in the length of work in the specialty (except in cases of assignment of a pension on preferential terms, for length of service and other cases established by other regulatory legal acts).

1.3. Do fathers possess the right to take paternity leave? 

Fathers possess the right to take paternity leave. In light of the general rule, parental leave can also be used in whole or in parts by the child’s father, grandmother, grandfather, other relative or guardian who actually takes care of the child. 

At the request of the child’s mother, father, grandmother, grandfather, other relative or guardian, while on parental leave, they can work part-time or at home. 

Accordingly, the child’s father retains his place of work (position) during parental leave. Parental leave is counted in the total length of service, as well as in the length of work in the specialty (except in cases of assignment of a pension on preferential terms, for length of service and other cases established by other regulatory legal acts).

1.4. Are there any additional parental leave rights that employers must adhere to?

Apart from the parental rights stipulated in the previous questions, the following shall be taken into consideration:

• As a general rule, an employee's right to use paid leave for the first year of employment arises after 11 months of continuous employment with the organization. By agreement of the parties, paid leave may be granted to an employee even before the expiry of 11 months for women - before or immediately after maternity leave and employees who have adopted a child (children) under the age of 3 months.
• Employees who have adopted a child under the age of three months shall be granted maternity leave with payment of maternity benefits for this period.

1.5. Do employees have the right to flexible working arrangements if they are responsible for dependents? 

The employer is obliged to establish a part-time working day or parttime working week at the request of a pregnant woman, one of the parents (guardian, custodian) who has a child under 14 years of age (a child with disabilities under 18 years of age), as well as a person caring for a sick family member in accordance with a medical report.

(2) Termination of Employment

2.1. Is it mandatory for employers to provide notice of termination of employment? How is the notice duration determined?

Depending on the grounds of termination, different statutory terms apply. 

In case of dismissal due to non-compliance of the employee with the position or work performed due to health conditions or insufficient qualifications that prevent the continuation of this work, the employer is obliged to notify the employee at least 2 weeks in advance. 

In case of termination of an employment contract due to: liquidation of an organisation (legal entity), termination of the activity of an employer (individual); reduction in the number or staff of employees, including in connection with the reorganisation of the organisation, the employer is obliged to personally notify the employee in writing at least 1 month before dismissal.

2.2. Can employers enforce "garden leave" during the notice period, where the employee remains employed but does not have to attend work?

The term “garden leave” is not included in the labour Code of the Kyrgyz Republic, though in practice it takes place as long as it does not impair the employee's rights.

2.3. What safeguards do employees have against dismissal? Under what circumstances is an employee considered to be dismissed? Is consent from a third party necessary before dismissal by an employer?

In light of the general provisions of the labour Code of the Kyrgyz Republic, the following grounds for termination of employment contract exist:

1. agreement of the parties; 

2. expiry of the term of the employment contract; 

3. initiative of the employee; 

4. the employer's initiative; 

5. transfer of the employee at his/her request or with his/her consent to work for another employer or transfer to an elected (work) position; 

6. circumstances beyond the control of the parties; 

7. refusal of an employee to be transferred to another job due to his or her state of health in accordance with a medical report; 

8. an employee's refusal to continue working due to a change in the material conditions of labour; 

9. an employee's refusal to continue working in an organisation in connection with a change of ownership, a change in its subordination (jurisdiction) or its reorganisation; 

10. refusal of an employee to be transferred in connection with the employer's relocation to another locality; 

11. unsatisfactory results of the probationary period.

An employment contract may also be terminated on other grounds provided for by this Code and other laws. 

Under the above mentioned circumstances an employee can be considered as dismissed. 

Depending on the grounds of dismissal, certain guarantees stipulated in order to safeguard the legitimate rights of employees. The main safeguards are: 

• It is not allowed to dismiss an employee during the period of temporary disability and during the employee's stay on vacation, with the certain exceptions;
• When an employee's employment contract is terminated on the certain grounds provided for by the labour Code of the Kyrgyz Republic, the employee may be transferred to another position;
• In the event of a reduction in the number or staff of the organisation's employees, priority right to remain at work is given to employees with higher labour productivity and qualifications, as well as those who meet the criteria set out in the collective agreement, agreement or employment contract.

The consent for dismissal is necessary when employees who are members of a trade union organisation or other representative body of employees. Such a category of employees cannot be dismissed on certain grounds under the labour Code of the Kyrgyz Republic without the prior written consent of the relevant trade union organisation or other representative body of employees of the organisation.

2.4. Are there specific employee categories enjoying special protection against dismissal?

• It is not allowed to dismiss an employee during the period of temporary disability and during the employee's stay on vacation, with the certain exceptions.
• The consent for dismissal is necessary when employees who are members of a trade union organisation or other representative body of employees. Such a category of employees cannot be dismissed on certain grounds under the labour Code of the Kyrgyz Republic without the prior written consent of the relevant trade union organisation or other representative body of employees of the organisation.

2.5. Under what circumstances is an employer justified in dismissing employees: 1) due to individual reasons; 2) business-related grounds? Do employees receive compensation upon dismissal, and if so, how is it calculated?

In light of the general provisions of the labour Code of the Kyrgyz Republic, the following grounds for termination of employment contract exist (due to individual reasons and business-related grounds): 

1. agreement of the parties; 

2. expiry of the term of the employment contract; 

3. initiative of the employee; 

4. the employer's initiative; 

5. transfer of the employee at his/her request or with his/her consent to work for another employer or transfer to an elected (work) position; 

6. circumstances beyond the control of the parties; 

7. refusal of an employee to be transferred to another job due to his or her state of health in accordance with a medical report; 

8. an employee's refusal to continue working due to a change in the material conditions of labour; 

9. an employee's refusal to continue working in an organisation in connection with a change of ownership, a change in its subordination (jurisdiction) or its reorganisation; 

10. refusal of an employee to be transferred in connection with the employer's relocation to another locality; 

11. unsatisfactory results of the probationary period. 

An employment contract may also be terminated on other grounds provided for by this Code and other laws. 

Compensation in case of dismissal due to liquidation of the organisation or reduction of the staff of employees is paid in the amount of not less than two average monthly wages. 

Compensation in case of dismissal due to non-compliance of the employee with the position held or the work performed, is paid in the amount of the average monthly wage.

2.6. Are there particular protocols that employers must adhere to regarding individual dismissals? 

Not Applicable.

2.7. What claims can an employee pursue if they are dismissed? What remedies are available for a successful claim?

Each ground of dismissal stipulates certain remedies, including financial remedies. The following must be taken into account: 

• Upon termination of the employment contract due to liquidation of organisation and reduction of the staff of employees, the employer pays severance payment in the amount of not less than two average monthly wages; 
• Upon termination of an employment contract under certain grounds stipulated by the labour Code of the Kyrgyz Republic, severance pay in the amount of an average monthly wage shall be paid;
• The labour contract or collective agreement may provide for other cases of payment of severance pay, as well as set higher amounts of severance pay.

2.8. Can employers resolve claims before or after they are initiated?

Individual labour disputes are considered by labour dispute commissions, the authorised state body in the field of supervision and control over compliance with labour legislation and the courts. 

An employee, at his choice, may apply for a resolution of a labour dispute to the labour dispute commission or an authorised state body in the field of supervision and control over compliance with labour legislation, or directly to the court. 

In cases where the labour dispute commission has not been established in the organisation, the labour dispute is subject to consideration directly by the authorised state body in the field of supervision and control over compliance with labour legislation or in court. 

The settlement of an employment dispute can also be carried out through the application of mediation procedures in accordance with the procedure provided for by legislation in the field of mediation.

2.9. Does an employer bear additional obligations when dismissing multiple employees simultaneously?

In the event of a threat of mass dismissals of employees, the employer shall, in coordination with the trade union or other representative body of the organisation’s employees and the relevant state body, take special measures providing for: 

1. limitation or temporary cessation of the admission of new employees, dismissal of part-time workers;

2. cancellation of overtime work; 

3. change of essential labour conditions in accordance with the relevant provisions of labour Code of the Kyrgyz Republic; 

4. phased release of employees; 

5. other measures if they are stipulated by a collective agreement or an agreement. 

A mass dismissal is a reduction in the number or staff of employees at least 25% of employees in organisations with up to 50 employees and at least 15% in organisations with more than 50 employees for 2 consecutive months. 

The reduction in the number or staff of employees is associated with relevant financial obligations prescribed by the labour legislation of the Kyrgyz Republic.

2.10. How can employees enforce their rights regarding mass dismissals, and what are the consequences if an employer fails to comply with its obligations? 

The employees are entitled to apply for the court for seeking relevant compensations from the employer.

(3) Data Protection and Employee Privacy 

3.1. How does the employment relationship get impacted by employee data protection rights? Is the transfer of employee data across borders unrestricted for employers?

Before providing his/her personal data, the subject of personal data must be familiarised by the holder (owner) of the personal data array with the list of collected data, the grounds and purposes of their collection and use, the possible transfer of personal data to a third party and transfer of personal data across borders, as well as informed about other possible use of personal data. 

The consent of the personal data subject shall be expressed in writing on paper or in the form of an electronic document signed in accordance with the legislation of the Kyrgyz Republic on electronic signature.

3.2. Are employees entitled to obtain copies of any personal information held by their employer?

The subject of personal data has the right to know about and have access to the personal data held by the holder (owner) of personal data concerning him/her.

3.3. Do employers have the authority to conduct preemployment checks on prospective employees (such as criminal record checks)?

Pre-employment check is obligatory in certain cases. When concluding an employment contract, a person entering a job shall present to the employer: passport or other identity document; labour book; social security card; military registration documents (for persons liable for military duty and persons subject to conscription), and for jobs requiring special knowledge (training), the employee shall present a document on education (speciality, qualification); certificate of absence of criminal record for activities related to the upbringing, education and service of persons under 18 years of age.

3.4. Do employers have the right to monitor employee emails, phone calls, or use of company computer systems?

The right to freedom of the right to privacy of correspondence, telephone and other conversations, postal, telegraphic, electronic and other messages is a constitutional right. The interference cannot be presumed. 

However, in practice the monitoring of corporate emails and corporate computer systems can take place under the pretext of signing relevant confidentiality agreements with an employee.

3.5. Can employers control an employee's use of social media both inside and outside the workplace?

The right to freedom of the right to privacy of correspondence, telephone and other conversations, postal, telegraphic, electronic and other messages is a constitutional right. The interference cannot be presumed.

(4) Court Practice and Procedure

4.1. Which courts or tribunals hold jurisdiction over employment-related complaints, and what is their composition?

The courts of general jurisdiction hold jurisdiction over employmentrelated complaints. The judicial system consists of 3 court instances. The court of the 1st instance reviews employment-related complaints in the composition of 1 judge. The courts of 2nd and 3rd instances review the employment-related complaints in the composition of 3 judges.

4.2. What procedures govern employment-related complaints? Is conciliation obligatory before proceeding with a complaint, and is there a fee for employees to submit a claim? 

The claimants on employment-related complaints are exempt from state fees. The conciliation before judicial proceedings is not mandatory.

4.3. What is the typical duration for resolving employment-related complaints? 

Generally, civil cases are considered and resolved within three months from the date of receipt of the application by the court of first instance. 

Cases regarding reinstatement at work are considered and resolved within a period of up to one month from the date the application was accepted for court proceedings. 

The courts of the 2nd and 3rd instances are obliged to consider the case no later than two months from the date of its receipt. 

However, in practice duration of employment-related disputes deepens on the complexity and subject matter of the case.

4.4. Is it possible to appeal against a decision at the first instance, and if so, how long does such an appeal usually take? 

The appeal can be made within 30 calendar days since the court of the 1st instance announces its decision. The courts of the 2nd and 3rd instances are obliged to consider the case no later than two months from the date of its receipt. 

However, in practice duration of employment-related disputes depends on the complexity and subject matter of the case.

(5) Work Permits 

5.1. What are the restrictions or limitations placed on individuals holding a work permit in terms of job duties, employer changes, or duration of stay? 

The employee is restricted in terms of the duration of his/her work permit. As long as the work permit is valid, the foreign employee can execute labour activities in the territory of the Kyrgyz Republic.

5.2. What are the requirements for obtaining a work permit? 

As a general rule, foreign nationals have the right to work in the Kyrgyz Republic on the basis of a legally obtained work permit. Similarly, employers in the Kyrgyz Republic have the right to employ foreign nationals based on quotas for attracting foreign labour. 

It is necessary to underline that the process of acquiring a quota and work permit is closely connected to the visa application process. The general procedure is as follows: 1) obtaining a quota for attracting foreign labour, 2) obtaining an electronic work visa to enter the territory of the Kyrgyz Republic, 3) obtaining a work permit, 4) extension of the electronic work visa for the duration of the work permit. 

It is important to emphasise that the Kyrgyz Republic is a full member of the Eurasian Economic Union (hereinafter "EAEU"). Thus, by virtue of the Treaty on Accession to the EAEU ratified by the Kyrgyz Republic, citizens of EAEU member states are exempt from obtaining work permits in the Kyrgyz Republic. Additionally, employers are entitled to hire citizens of EAEU member states without being subject to national labour market protection restrictions, i.e. without obtaining quotas.

5.3. Are there any recent changes or updates to work permit regulations or policies that individuals or employers should be aware of? 

Not Applicable.

5.4. Are there specific industries or occupations that have different requirements or exemptions for obtaining a work permit? 

Various categories of employees are subject to different regulations and possess distinct rights. These regulations govern the duration of work permits, the allocation of quotas, and the relevant financial obligations imposed on employers. By understanding the peculiarities of these regulations, employers can navigate the labour market and ensure compliance with the legal framework. 

Highly qualified foreign specialists hold a unique position within the labour market. Upon the request of their employer, they can obtain a work permit for the duration of their employment contract, ensuring that it does not exceed a period of three years. This work permit is granted outside the labour migration quota, allowing employers to hire specialised talents from abroad without being limited by quota restrictions.

5.5. What is the ratio of foreign and local labor? 

The number of foreign specialists attracted to one economic entity cannot exceed 20% of the total number of employees of this economic entity. In the case of attracting foreign specialists over 20% of the total number of employees, the employer pays a multiple state duty.

(6) Tax

6.1. What are the legal obligations and requirements regarding the individual income tax paid by employers? 

The employer pays 27.25% of all income accrued in favour of the employee. At the same time, 17.25% is paid by the employer, and 10% by the employee.

6.2. What is the percentage of withholding tax? 

The percentage of withholding tax is 10%.

 

Authors:

Elvira Maratova, Oleg Kim.