Vägen runt LAS Om begreppet provocerad uppsägning och behovet av lagstiftning

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

Sammanfattning: This work discusses and investigates the concept provoked dismissal and its use in Swedish law. The essay has been limited to only discuss the Swedish law since there are no EU rules corresponding to those found in the Swedish Employment Protection Act. Since there is only very limited doctrine on the subject, the concept has been investigated using case studies. The legal cases are taken from the Labour Court's practice, since it is the Labour Court which is the highest court in Sweden regarding labor law. The legislation that regulates provoked dismissal is mainly the Employment Protection Act (LAS), but other labor law such as the MBL may be applicable. Other laws such as the Swedish contractual law (Avtalslagen) may also be applicable to cases of provoked dismissal. In Swedish law the concept of provoked dismissal, as it looks today, is a result of the Labour Court's practice. This practice can be traced back to 1974 and the first Employment Protection Act. The Court then refined the concept through its practice and developed a number of requisites that can be used for the assessment of cases of provoked dismissal. There are many different situations that fall under what is to be seen as a provoked dismissal. The essay discusses some typical examples and how courts have reasoned in the different cases. There are other ways to go around the employment protection that LAS provides. One method is called mock redundancy. Mock redundancy is a technical term developed by the Labour Court's practice. Because redundancy is always seen as a legitimate reason for a dismissal employers sometimes choose to indicate redundancy as grounds for termination, even though the dismissal was for personal reasons and no real redundancy exists. The rules requiring repositioning and order of termination lists, as found in the Employment Protection Act, can also be exploited by the employer to go around the employment protection. There are also cases where an employer chooses to provoke a dismissal even though the employer has reasonable grounds for dismissal. This may be because it is uncertain whether the reasonable grounds would hold up in a court trial. This may also be a way for the employer to speed up the process or avoid the interference of the union. There is some discordance if we look more closely at how the AD reason in its court cases. One of the most obvious discordances , we will find if we compare the Labour Court's practices regarding reasonable grounds when it is the employer who terminates the employment compared to when it is the employee who chose to do so. In order to overcome this discordance in practice for two situations governed by the same section I suggest that in 7 § LAS introduces a paragraph that equates provoked dismissal with a termination by the employer without reasonable grounds.

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