Förändrad sysselsättningsgrad – förhållandet mellan arbetsledningsrätten och anställningstryggheten

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen

Sammanfattning: The issue about the right to work full time has been debated for long time. The demand for the right to work full time is driven by the trade union movement as well as by politicians. It can be hard to earn a living when you work part-time, and from that aspect the part-time worker has an entitled interest to ask for such a high employment rate as possible. On the other hand the employer has an interest to fit his organization to match the production, or in the retail trade sector, to the customers behaviour. In many ways, these two interests directly contravene to each other, and if the interests of one part is satisfied the other part’s interest is violated. It is this relation between the employer’s managerial prerogative and the employment protection I have chosen to examine. I have chosen to look at two typical cases. One is when the employer through a reorganisation wants to convert full-time jobs into part-time jobs, or wants to decrease the employment rate of existent part-time jobs. The other typical case is when an employee due to section 25 a of the 1982:80 Employment Protection Act wants to increase his employment rate and it contradicts to the organization the employer wants to have.

In two important cases the Labour Court dealt with both of these typical cases in the summer of 2012, and these cases - Labour Court judgement AD 2012:47 and Labour Court judgement AD 2012:41 are central in my thesis, even though my conclusions are based on several cases from the Labour Court and on doctrine.

Shortage of work considered to be objective ground for notice of termination. The term shortage of work is negatively defined. Termination grounds that are not related to the employee personally is defined as shortage of work. It means that if an employer wants to make a reorganisation where part-time jobs replace full-time jobs and its necessary to terminate employees, these notices of termination is based on shortage of work. These notices of termination is objectively grounded if the employer has conducted a careful and serious assessment of the future needs. My conclusion is that the requirement for the employer to show that he has conducted a careful and serious assessment are relatively low.

I have also concluded that an employer who wants to decrease the employment rate of an employee’s when such a reorganisation is done probably can do it without having to apply the rules on priority, and consequently can evade the purposes of the 1982:80 Employment Protection Act.

When it comes to an employee who wants to increase his employment rate it basically requires a vacancy that correspond to the desired employment rate of the employee, otherwise the employer don’t have to satisfy the desire. The interest of the employer in obtaining control over his organization outweighs the interest of the employee in increasing his employment rate.

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