Arbetstagarbegreppet och regleringen av ”mellangruppen” i svensk och tysk rätt - en komparativ studie i EU-rättsligt perspektiv

Sammanfattning: The personal scope of labour law in Sweden and Germany is defined by the use of the notion of employee (Arbetstagarbegreppet/Arbeitsnehmerbegriff). The notion of employee is important since a large part of the labour law regulations in Sweden and Germany only cover employees. Therefore the meaning and interpretation of the notion of employee has a great influence on who is covered by labour law and the protection it offers. There is no general legal definition of the notion of employee in Swedish or German legislation. Instead its content has mainly been developed through the courts in case law. This means that the essay to a large extent consists of studies of case law to obtain an understanding of how the national courts determine who is to be regarded as an employee. The courts in both countries take certain factors into consideration when making their overall assessment, which can be described as a “multi factor test”. Sweden has a very broad “multi factor test” where no factor is considered to be “necessary” or “sufficient” to determine the existence of an employment relationship. The German assessment is different from the Swedish one, since the “multi factor test” is mainly used to determine if the person is personally dependent. Personal dependence is the most important factor that the overall assessment of the German courts revolves around since an employee in Germany is someone that is personally (and economically) dependent of the employer. Economic dependence is however not enough to establish an employment relationship. Another difference between the two countries is linked to the factor of economic dependence. The notion of employee in Germany is supplemented with the notion of “arbetsnehmerähnliche Person”. An “arbetsnehmerähnliche Person” is considered as belonging to the self-employed category, but since the person is economically dependent on the person he or she is working for, the person is in need of greater protection than is provided to most self-employed persons. Therefore some of the legal protections afforded to employees are extended to “quasi-workers”. The notion of employee is also supplemented by a notion of “quasi-workers” in Sweden in the 1976 Co-determination Act and is called “dependent contractors” (“jämställda/beroende uppdragstagare”). However, as the extent of the notion of employee has widened, the importance of this category “jämställda/beroende uppdragstagare” has diminished. Most of the persons intended for the category when it was introduced, are already covered by the notion of employee. Therefore many, including the author, argue that the category “jämställda/beroende uppdragstagare” has lost relevance in Sweden and is obsolete.