Fingerad arbetsbrist

Sammanfattning: The subject of the thesis is unfair dismissal, where the question contains a definition of the concept according to current law and a survey of what the Labour Court emphasizes in assessments in these cases. In cases of suspected unfair dismissals, the court has applied a more nuanced burden of proof rule in these disputes. The paper will also address this and provide a more detailed description of it. The method used to answer the question is the legal dogmatic method, where law, preparatory works, doctrine and practice have been used. Practice and doctrine have been the main references, with judgments from the Labour Court and legal commentaries from labour law experts. Unfair dismissals are a concept that is not stated in law, but the starting point for the concept is found in the preparatory work for LAS. Otherwise, fingered work deficiency has emerged through the practice of the Labour Court. Unfair dismissals are when one or more employees are dismissed with reference to shortage of work when the actual reason is due to personal reasons. To prevent an employer from using lack of work as cover in these cases, the Labour Court has applied a shared burden of proof where the employee must first show probable cause that the dismissal is for personal reasons. If this is done, the burden of proof shifts to the employer, who must show a lack of work. The Labour Court changed direction when they ruled on a split motive, which means that if there is a real lack of work, it does not matter if there are also personal reasons in the picture. This means that the assessment no longer consists of what constituted the actual grounds for dismissal, but rather an assessment of whether a lack of work existed. The analysis discusses the difficult demarcation between individual labour law protection and the right to manage the workforce, which becomes clear in several dismissal disputes where unfair dismissals have been raised.