Uppsägning under täckmantel - En analys av arbetsgivarens kringgåenden av LAS med särskilt fokus på fingerad arbetsbrist

Sammanfattning: The purpose of the essay is to examine what characterizes the grounds for termination of employment and to investigate how redundancy can be contrived. By using the legal dogmatic method, the essay illustrates the meaning of contrived redundancy in the light of current law. The labour law legislation is based on the employer’s right to free management and employment, which is expressed in the employer’s prerogative. Termination is the last measure an employer must take, and the provisions of the Employment Protection Act aim to steer employers in this direction. There are only two grounds for termination according to the 7 § in the Employment Protection Act, either redundancy or personal reasons. This paragraph also states that a termination requires valid reasons to be justified. Redundancy refers to all terminations that cannot be attributed to the employee personally and thus there cannot be personal redundancy. Contrived redundancy affects both grounds for termination. It occurs when an employer claims redundancy as the reason for termination, when the actual motive is directly attributable to the employee personally. The employer therefore use redundancy to cover another circumstance. The general burden of proof principle in Swedish law places the burden on the person who claims something to prove that it is correct. However, the burden of proof in the labour legislation is based on the protective function that the legislation regulates. In cases of contrived redundancy, the employer’s burden of proof applies when the Labour Court finds it likely that the termination in fact is of personal nature. The analysis results in the following conclusions. Employers are obliged to comply with the provisions of the Employment Protection Act. Employers can, despite this, contrive redundancy to exploit the grey area between redundancy and personal reasons to circumvent the statutory employment protection. The purpose of the labour legislation is thus to prevent the employer from misusing the meaning of redundancy.