Ett skenbart anställningsskydd? : En arbetsrättslig studie av förutsättningarna för otillbörligt kringgående av reglerna om företrädesrätt tillåteranställning

Sammanfattning: The Employment Protection Act (1982:80) provides provisions regarding priority of re-employment. A few cases where these provisions have been subject to examination, have been discussed thoroughly in SOU 2014:55. In these cases the Labour Court has identified the question whether the provisions regarding priority of re-employment can be subject to circumvention in an illegal manner. The Labour Court has stated that it would be incompatible with the sense of justice if the provisions could be circumvented to the detriment of employees entitled to priority of re-employment. However, the Labour Court stated that certain conditions have to be imposed for the assessment. After analysis of the conditions, it is established that they are deemed to cause major difficulties for employees, why it is held that the purpose and the function of the conditions are not achieved. The purpose of the essay is therefore to investigate whether the application of the conditions imposed by the Labour Court, need to undergo modifications to meet the underlying purpose of the creation of the conditions. By reason of the difficulty with the conditions, the essay provides three different amendments in which two of the amendments are ascertained to not contribute to such an improvement that they should actually be applied. The third amendment implies that the burden of proof to some degree is reversed from the employee to the employer, whereby the difficulties following the second condition are limited. To preserve the balance between the interests of both parties the standard of proof is modified for the employer. Except from the fact that the underlying purpose of the provisions can be met with this modification, the amendment also ensures that the procedural premises conform to what generally is considered valid. Additionally, the rules regain their effectiveness and predictability.