Saklig grund och uppsägning på grund av arbetsbrist i fransk och svensk rätt
Sammanfattning: There are several rules in Swedish and French labor law to protect the employee against unfair dismissal. When it comes to dismissal due to redundancy the employee is protected by the obligation on the employer to find the employee alternative work, the priority rules, the priority right to reemployment and by the requirement of a just cause. In Sweden, a dismissal due to redundancy is in principle always a just cause if the employer has fulfilled its obligation to find the employee alternative work. French law contains similar protection as the above as well as an obligation to establish a job-protection plan in case of collective redundancy. In French law the dismissal for economic reasons does not however imply a just cause. The court will instead control if the dismissal has a just cause or not. This means that the French court to a much larger extent examines the reasons behind the dismissals and the real cause for it. Even if Swedish and French law contains similar protection, they are executed in different ways. The obligation to find the employee alternative work is less stringent in French law, both when it comes to who will get the offer and which offers the employer has to give. The priority rules are on the other hand stricter in Sweden. Here the principle first in – last out is applied, meaning the priority is decided by the employees' length of service. In France the length of service is one of several factors which the employer has to take into account when he or she decides the priority. The employer decides which factors to prioritize, which may make the priority in France more favorable for the employer compared to the Swedish rules. In France, all people who have been dismissed for economic reasons have priority right to reemployment; in Sweden the employee obtains this right after one year of service. The right to reemployment is for one year in France, in Sweden nine months. The person loses its right to reemployment in Sweden after not accepting a reasonable offer. In Sweden the employer can decide to use temporary workers instead of hiring. These two restrictions in the right to reemployment do not exist in France. All above mentioned differences leads to that the employment protection in the two countries differs significantly. At the moment of this paper the employment protection is debated in both Sweden and France, partly as to implement the EU principle flexicurity. A new legislative proposal has been introduced in Sweden, in France there have been discussions about a new collective agreement during spring 2012 but the agreement was withdrawn after the presidential election. Both the French and the Swedish law has its benefits. In France there is a lesser risk for an unfair dismissal, while in Sweden there are better possibilities for the employer to organize the activity in the most economically advantageous way. The obligations in French law differ from important principles in Sweden, where the employer’s right to direct and allocate work has a crucial role, such that a judgment by the court is viewed as a violation of this right. However, I do not find it to be impossible to demand from the court more sensible analyzes if there is a just cause for dismissal. French version of the thesis is available in the appendix “Bilaga A”. Une version française du mémoire est disponible en annexe “Bilaga A”.
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