Omplaceringsskyldighetens gränser vid uppsägning - En rättsdogmatisk studie om arbetsgivarens utredningsskyldighet och när ett omplaceringserbjudande är att anse som skäligt

Sammanfattning: For a dismissal to be lawful it must fulfil the just cause requirement stipulated in Section 7 of LAS. The just cause requirement is not defined in neither LAS nor any other statute. Section 7 of LAS only explains that just cause will not be found if it is reasonable to demand that the employer provides the employee with different work tasks or transfers the employee to some other available position at the employer´s establishment, according to Section 7, Paragraph 2 of LAS. This obligation is called the duty of transferral and this prerequisite exists for dismissal of both personal and business-related reasons. Neither legislative history nor legal literature has managed to define how far-reaching the duty of transferral is. One can only find a few guidelines on the employer’s duty of transferral in legislative history and legal literature. However, there are a lot of decisions regarding the duty of transferral from the Swedish Labour court. The aim of this thesis is to examine and clarify how far-reaching the duty of transferral is. This thesis has thus examined, by legal dogmatic method, all cases related to this legal issue. In order to achieve the aim, this thesis examines: how far-reaching is the employer’s duty of transferral to accomplish a careful investigation? What kind of possibilities of transferral does the employer need to consider? When is an offer of transferral considered to be reasonable? It is evident from legislative history and court practise that the employer is obliged to conduct a careful investigation into the possibilities of transferring the employee and offering the employee a reasonable transferral. Therefore, the essay is structured along with these three criteria, where each criterion is examined separately. In their judgement, the Swedish Labour Court has clearly expressed that each case must be assessed individually, with regard to the circumstances of each individual case. With this considered, this thesis has resulted in guidelines, some more distinct than others, for both employers and employees to use as guidance in situations of transferral associated to dismissals. This thesis has found a lot of guidelines that can be summarize as follow: the employer’s duty to conduct a careful investigation comes with high demands. The employer can, on the other hand, obviate a lot of risks by taking simple measures. What kind of possibilities the employer needs to consider depends on how the organization is structured. Even if it contradicts the main rule the employer can be obliged to conduct a reorganization to avoid a dismissal. Lastly, what is considered to be a reasonable offer must be assessed individually in each individual situation. The assessment can depend on what other types of vacant positions there are. It is also found that the possibilities for the employee to be transfer can be extended depending on what the employee is claiming. This presumes that the employee is aware of the situation in the organization and the legal situation about the duty of transferral.