Möjligheter att kringgå LAS? : Vid tvister gällande uppsägning och avskedande.

Sammanfattning: Abstract   We have in this essay, based on a real event in form of a judgment by the Swedish Labour Court, problemised articles 7 and 18 in the Swedish law on protection of employees, “lag (1982:80) om anställningsskydd” (her einafter reffered to as LAS). Those articles regulates dismissal and terminations of employment. Our interest in this topic awakened after we read an inquiry regarding dismissal and termination disputes and other labor legal literature. Our purpose of this paper is to study law and practice to answer the following questions. Do the purpose of LAS compliance in practice regarding dismissals and termination or have the law been eroded by being used in a way that might not be what the legislature had in mind from the beginning? Does the number of annulled disputes in the Swedish Labour Court regarding dismissals and termination, increase? Our starting point is the law, that is a rule-oriented approach, and the method then becomes the right dogmatic. Since our purpose is to systematize as well as and interpreting legislation and practice, to see if LAS has been applied in a way that is consistent with the intentions of the legislators. We would also like to examine if we can interpret if the number of annulled lawsuits has increased in recent years. The delimitations we've chosen to do is to describe the general rules that apply throughout the entire labor market and focus only on workers who have a permanent employment and who are working full time. Our main focus in terms of legislation are mainly of LAS. The purpose of LAS is to increase the security of employment for workers by protecting them against unfair and arbitrary dismissals. We became surprised when we in our study saw that there are many opportunities for employers to apply the law in a way that was not the legislature's intention. According to art. 7 it is clear that a dismissal must be objectively justified, which it is not if another working task can be prepared by the employer. Article 18 states that the termination may take place only after the employee has grossly neglected his duties for the employer. However, we see in our study that the misconduct which is the reason for a termination is not always so grossly as the legislature intended it to be, in fact the misconduct is often only a reason for a dismissal due to personal reasons. The conclusions we can draw from having studied law and analyzed the Labour Court's practice is the following scenarios.   One is where the employer can terminate rather than dismiss the employee due to personal reasons, when there is only cause for dismissal. The employer will not have to pay the employees salary and other benefits during the time a dispute is in progress. At a termination the employment cease immediately, which means that the employee immediately is left without any income. Court grants nor a claim from the employee, that the employment will continue during the ongoing dispute, if a cause for dismissal exists. The employee is then in a disadvantage position against the employer and may feel more pressured to conciliation, which then favors the employer that quickly gets rid of the employee.   Another scenario is when the employer dismiss due to redundancy rather than personal reasons. The Court considers that an employer decides the scope of its activities and it is usually sufficient that the employer show a business economic assessment as a reason for the labor shortage deemed to be objectively justified. Labour shortage must not be due to lack of profitability, it can also be based on increased profit demands or various forms of rationalization. That the employer can bypass the priority rules for dismissal by reason of redundancy is also something we see, by adjusting qualification requirement in situation where redundancy occurs, and thus cause an situation where the unwanted worker can not claim the position because he lacks sufficient qualifications.   The underlying reason to circumvent the law may be that the employer, in case of dismissal due to personal reasons, have far-reaching obligations which often complicates and lengthens the process to end an employment. Another cause could be an economic perspective, because it does not cost more for the employer to terminate than to dismiss an employee. The economic perspective could be derived to the increasing globalization in today's society, leading to increased competition in the labor market, which places greater demands on businesses. Based on our first question at issue, can we see that the law can be applied in a way that does not live up to the purpose of the articles 7 and 18, which thus can be expected to lead to the law being eroded. Based on our second question at issue, we can see that the number of disputes in the Labour Court regarding both dismissal and termination that becomes annulled has increased in recent years, which may be considered to strength our conclusion that the law is being eroded when the court must determine in more lawsuits.