THE RIGHT OF AN EMPLOYEE TO BE PROMOTED IN ACCORDANCE WITH NATIONAL LABOUR LEGISLATION

Abstract

Background. The relations that constitute the subject matter of labour law are distinguished by their rather broad scope. After all, along with the labour relationship itself, there are relations related to recruitment, collective bargaining, vocational training, labour disputes, etc. In this 
case, the implementation of relations related to job promotion is of particular interest. This category is actually at the intersection of legal regulation of pre-employment relations and employment relationship itself. Such ambiguity underlines the relevance of studying the issues of job promotion, which is important for both parties to employment relationship – an employee and an employer. The purpose of this research is to clarify the peculiarities of legal regulation of job promotion, its place in labour law, and its proper practical implementation. 

Methods. In the course of preparation of the article, the author applied dialectical, comparative legal, formal and logical and other methods of research. With the help of the dialectical method, in particular, the author identifies the specific features of legal regulation of job promotion. The 
comparative legal method allowed for a comparative legal study of the provisions of national and international legislation governing the issues of job promotion. The formal logical method was used to identify the shortcomings of legal regulation of job promotion and to correlate this category with the employer's right to make a free choice among candidates for a vacant position. 

Results. If there is a vacant position, the employer has the right to freely choose among candidates for the position, which is expressly provided for in Article 22 of the Labour Code of Ukraine. This can be either a person who is not employed by the employer or an employee who already 
holds a certain, usually lower, position. In labour law, an employer's choice of a candidate for a vacant position directly from the staff is associated with such a category as job promotion. Labour legislation does not define job promotion, focusing mainly on the employee's right to such promotion. The provision of Article 145 of the Labour Code of Ukraine should not be considered as an absolute obligation of the employer to provide an employee  with a promotion if the latter successfully and conscientiously performs their job function. In this case, the employee's right to be promoted depends  on the following factors: a) the employer has a vacant position; b) there is a causal correlation between the employee's successful and efficient 
performance of the job function and the requirements for the job duties of the vacant position; c) clear and transparent procedures for employee evaluation and promotion are in place. 

Conclusions. Fair, accessible and inclusive job promotion procedures will ensure the effective exercise of the employee's right to such promotion, as well as its harmonious correlation with the employer's right to make a free choice among candidates for a vacant position. In particular, the employer will have a fairly detailed idea of the existing potential of employees, and the latter will not feel distrustful of the employer's actions and disappointed in future professional activities. When developing promotion procedures, which may be established at the level of a collective agreement or a relevant special local regulatory act of the employer, it is important to: a) focus on the need to involve the primary trade union organisation, and in its absence – a representative freely chosen by employees, in the implementation of employee evaluation and promotion procedures; b) defining 
clear and transparent criteria for eligibility for promotion; c) moving away from one-person decision-making on job promotions towards the establishment of appropriate collegial bodies; d) properly informing employees about the existing procedures for evaluating their performance that 
affect their further promotion.