Arbetstagarens företrädesrätt till återanställning och arbetsgivarens användning av bemanningsarbete. En rättslig analys av kringgåenden av anställningsskyddslagen

Sammanfattning: The purpose of this essay is to examine the legal relationship between the employee’s preferential right to reinstatement and the employer’s right to make use of temporary agency work. Since the European Union (EU) adopted Directive 2008/104/EC on temporary agency work in 2008 a further purpose is to investigate its possible influence on the preferential right to reinstatement. As the temporary agency work industry growing rapidly in Sweden so does the societal debate on the companies providing temporary workers. In Sweden, the temporary employment was prohibited until 1993, when the employment monopoly was dismantled. The debate has mainly been linked to section 25 in the Employment Protection Act. The section provides that an employee who has been employed have been terminated due to redundancy. The section also establish that the employee have priority right to re-employment in the company which he was employed. The debate has included questions dealing with whether the employer circumvents LAS by hiring workers instead of rehire the workers who were dismissed due to redundancy. This was also a large and important part of 2010 collective bargaining negotiations. The essay also includes collective agreements dealing with both preferential rights for the employees in the customer company as the conditions of employment for the temporary agency workers. In order to circumvent the preferential rights shall be deemed to have existed, there are three requisites which the court takes into consideration. The first is that the employer's underlying purpose must have been to precisely circumvent the LAS by dismissing staff and then hire workers from temporary agencies. Employer's conduct must also have been improperly. If the workforce would be of a more permanent nature it would be contrary to the sense of justice and could be regarded as a circumvention of the law. There are no court cases so far where the court has held that the employer circumvents preferential rights by hiring temporary workers. However, it remains to be seen how the court considers the situation in Marabou-case. The Directive concerning temporary agency work is a protective framework for the workers who are employed by temporary agencies. The Directive stipulates that workers in temporary agencies should have at least the basic working and employment conditions that apply to those working in the user undertaking. The implementation of the Directive into national law has not yet occurred. Investigation regarding this continues until the beginning of 2011 when the investigation will be presented. One of the conclusions that the author presents is that the collective agreements governing the preferential rights can have a significant impact on the employer's choice to hire workers.