Arbetskraftsuthyrning och anställningstryggheten vid verksamhetsövergång - Ett möte mellan överlåtelsedirektivet och bemanningsdirektivet

Sammanfattning: A social dimension of EU law emerged when protection for employees was considered necessary because of the effects the internal market had on restructurings of enterprises. The basic idea of the Directive on Transfers of Undertakings – first adopted in 1977, with a new version in 2001 – is to make sure that the employees, in the event of a transfer of an undertaking, business or part of an undertaking or business, are taken over from the transferor by the transferee, with unchanged terms of employment. The focus of contemporary EU employment law has shifted to sustainable growth and high employment rates. The flexicurity agenda is vital in the EU2020 strategy, as well as in the Employment Guidelines from the Council. Basic components are atypical workers, employability and security for employment in general, rather than for the specific employment. The Directive of Temporary Agency Work, adopted in 2008, is a typical example of flexicurity. The option for employers to meet their labor needs with an external workforce increases numerical flexibility. The Directive also guarantees fair employment conditions, equivalent to those of other workers. The Directive encourages temporary agency work, a phenomenon not long ago prohibited in many European countries, including Sweden. Current law regarding the encounter between temporary agency work and transfers of undertakings is not entirely established; however some conclusions can be drawn. The right for an employer to switch from regular to temporary workers is relatively unrestricted, even when the transition is carried out close to the transfer. The existence of temporary agency work affects the purpose of the Transfer Directive. Temporary agency work is based on a triangular relationship in which the temporary worker is employed by a Temporary agency, but performs work at a User undertaking. Even though the temporary workers are closely linked to the User undertaking, the relationship does not constitute employment. This means that fewer workers performing work at the User undertaking are protected by the Transfer Directive. Widespread use of temporary workers can also affect the applicability of the Directive in case of an alleged transfer concerning the User undertaking, in a way that concerns the employees of that employer. Also, restructurings of temporary agencies will to a low extent fall within the scope of the Transfer Directive. The employment protection intended with the Transfer Directive is not completely in line with the Temporary Agency Work Directive and flexicurity. If the Transfer Regulation is given a wide scope, this might affect the possibility to conduct effective agency business. For current law to follow the EU employment strategy, the encounter between temporary agency work and a transfer of undertaking should therefore be solved mainly on the conditions of the temporary agency work.