Arbetsledningsrätt och stress – skillnaden mellan arbetsgivarens ansvar, gentemot sjuka arbetstagare, enligt LAS och enligt arbetsmiljöregleringen

Sammanfattning: This thesis will investigate the relation between the managerial prerogative and the legal protection for employees that are sick and how this is ruled on by the Labour Court - according to the Employment Protection Act. Furthermore, the relation between the managerial prerogative and the work environment legislation regarding the responsibility for the psychosocial environment in the workplace will be investigated, focussing on problems related to stress and high work load. The purpose of the thesis is then to look at how the managerial prerogative is maintained according to the two regulatory systems. Finally the need for further regulations in the psychosocial work environment is examined. The managerial prerogative is an established principle in Swedish law but it has a number of limitations. One limitation is that the Work Protection Act requires a substantial reason for termination of employment. Sickness has, in the legislative history, been stated as a reason that in principle does not count as substantial enough for termination of employment as long as the employee is able to perform some form of meaningful task on behalf of the employer. The employer is also obligated to investigate options for rehabilitation and work assignment transfers to allow sick or injured workers to continue their employment. However, an employer is not forced to create new work assignments or expand their operation to be able to offer continued employment to workers that are sick. In the legislative history of the law it was stated that a generic line for when termination of sick employees was allowed could not be drawn, instead assessments would had to be made on a case by case basis. In application of law the Labour Court has applied these guidelines in ways that clearly point to the managerial prerogative still being strong compared to the protection afforded sick employees. Work environment legislation also limit the managerial prerogative. This includes regulations on psychosocial work environment, for example with problems relating to stress, and this thesis will analyse the effect this has on the managerial prerogative. The Swedish Work Environment Authority governs work environment regulations and base their rulings on the Work Environment Act, when they issue injunctions because of flaws in the psychosocial work environment. The law states that the employer is obligated to take any preventive measures required to lessen the risk of employees suffering physical or mental stress and accidents in the workplace. Judgements issued by the administrative courts and injunctions given by the Work Environment Authority points to the managerial prerogative being more limited by work environment legislation than by the the Employment Protection Act as applied by the Labour Court. Binding regulations regarding the psychosocial work environment are lacking but at the time this thesis is being written a proposal for such regulations have been made by the Swedish Work Environment Authority. There are many reasons why such regulations would be of great value but there are also problems with regulating this part of the work environment - for example it could interfere too much with the managerial prerogative.