Omplacerad eller utsorterad? - En studie om den rättsliga utvecklingen kring reglerna om omplacering i 7 § andra stycket LAS och omplacering i turordning enligt 22 § fjärde stycket LAS

Sammanfattning: The Employment Protection Act from 1974 was implemented in to Swedish law as a way to secure the employments of the employees. Before the implementation of the Act, the rights of the employees were regulated in collective agreements. By then there were only some rights regulated in the law. Some of the regulations that were implemented in to the Employment Protection Act was the 7§. The 7 § states that dismissal on the part of the employer has to have just cause. However, if it can be reasonably required that the employer transfer the employee to another job, there will be no just cause for dismissal. Another rule that was implemented was the 22 § of the Employment Protection Act. The purpose of the 22 § was to prevent the employer to one-sidedly choose which employees that would be dismissed in case of shortage of work. According to the 22 § the employees are to be transferred within their operational unit. If there is a collective agreement a priority list will be determined for each area of collective agreement. The employees with the longest total period of service for the employer, are prioritized a head of those with shorter period of service for the employer. The purpose of this essay was to examine what rights the employees have when transferred. Also what obligations and rights the employees have when transferring. More precisely the essay examined how the rules in 7 § relate to the rules of 22 § in the Employment Protection Act. I have used a legal dogmatic method to achieve the purpose of the essay. There has also been a critical perspective and a historical perspective to the analysis. There are different opinions regarding what order the rules should be applied. In what order the rules are applied results in different consequences for the employees. In the beginning the judgements of the Swedish Labour Court was indefinitely. Although with time, there were some judgements that clarified the matter. In the case AD 1996 nr 144 the Swedish Labour Court proclaimed that the priority rules would not be applied on the transfers according to the 7 §. The Swedish Labour Court also decided in the case AD 2005 nr 57 that if the employee turned down a reasonable offer of transfer, the rules of priority would not apply. In the case AD 2009 nr 50 the court proclaimed that the 7 § would be applied before the priority rules in the 22 §. Lastly the court proclaimed in AD 2011 nr 30 that the priority rules would not be applied before 7 § even if the consequence of not receiving an offer of transfer would be dismissal. There are those in the area of jurisprudence that are critical to these rulings. To apply the 7 § before the making of a priority list according to 22 § is considered by some, a way to reduce the rights of the employees. My conclusion is that it must be difficult for employees to know what a reasonable offer of transfer is. My conclusion is also that the order of the rules should change, so that the priority rules in 22 § is considered before the 7 §.