Nya rättsgrundsatser i anställningsskyddet : Med särskilt fokus på förmånlighetsprincipen och den fackliga föreningsfriheten

Detta är en Uppsats för yrkesexamina på avancerad nivå från Stockholms universitet/Juridiska institutionen

Sammanfattning: The thesis deals with the draft of amendments to the Swedish Employment Protection Act, that is the result of an agreement between the social partners. The thesis focuses mainly on the change in dispositivity that is proposed for the protection for employments that run until further notice. The draft proposes amedments to the section in the act that concern both the basis for dismissal for personal reasons and the employers’ obligation to reassign an employee before dismissal is actualized. According to current legislation, a factual basis is required to dismiss a permanent employee due to personal reasons. Today, the section in the act is mandatory and exceptions from the provision may only be made for the benefit of the employee. The draft proposes changes in the grounds for dismissal and an alleviation of the employer’s obligation to relocate the employee. Furthermore, the draft proposes that the dispositivity be changed in such a way that the section becomes mandatory in its entirety. Only trade unions that are organized at the main organizational level are proposed to be allowed to negotiate and sign collective agreements on exemptions from the provision. It is as well proposed that the main organizations be able to agree on exemptions that can be both to the detriment and advantage of the employee.  This new order that is proposed affects both the principle of advantage for the employee and the freedom of association for the trade unions according to Swedish law. The thesis deals with how the principle of advantage and how freedom of association is affected by the draft if implemented. To understand the aims and meaning of the draft, and existing legal principles in employment protection, the thesis deals with these topics based on Niklas Bruuns’ theory of access justice. Access justice should be understood as access through justice, rather than access to justice. This means that the employee gets a general right to employment in the labour market, instead of a right to a specific job with a specific employer. This creates demands on the state, which gets extended obligations towards the employee, but also the employee who is expected to be employable in relation to the needs of the labour market. This observed development of labour law is largely due to the widening of the gaps between workers in the labour market, in terms of insiders and outsiders. The essay argues that the proposed changes in the dispositivity concerning the grounds for termination seeks to achieve this identified need, to reduce the gaps between insiders and outsiders, but ends up leaning towards a solution that is outside labour law. The solution in the draft focuses more on financial issues relating to such as competition between corporations. The essay argues that it is possible to find a solution that supports the theory of access justice within the framework of labour law.

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