Inhyrning av arbetskraft när företrädesrätt föreligger
Section 25-27, i.e. the rights of priority of the Employment Protection Act, is a form of post-employment protection which exists to support those employed on a part-time basis and former employees. When a vacancy arises an employer should first and foremost offer part-time employees employment at a higher level of occupation or offer employment to former employees. The various types of employment contracts, other than those valid for an indefinite term, have increased during the last decades on the Swedish labour market. Labour hire has become more common and therefore we find it interesting to investigate how the rights of priority apply.The purpose of this thesis is to describe and analyze the law with regards to labour hire when people with rights of priority are available. We have formulated the following questions: what differentiates an employee and an assignee , to what extent is it possible to utilize labour hire rather than re-employ someone with rights of priority in accordance with Section 25 of the Employment Protection Act or offer a part-time employee employment at a higher level of occupation in accordance with Section 25a of the Employment Protection Act and are the possibilities for an employer in the public sector different from the possibilities for an employer in the private sector to utilize labour hire rather than re-employ someone with rights of priority in accordance with Section 25 of the Employment Protection Act or offer a part-time employee employment at a higher level of occupation in accordance with Section 25a of the Employment Protection Act?There is no sole criterion that defines whether a person is an employee or an assignee. Instead, all existing circumstances in each particular case must be observed. However, there are two fundamental requirements that must be present in order for a person to be regarded as an employee. The first requirement is that the relationship between the two parties (the employer and the employee) is based on an agreement between the two. The second requirement is that the agreement has to encompass one party providing labour for the second. With this in mind, an employee in a labour hire organisation cannot be regarded as an employee in the company which has hired labour as in this case there is no contractual relationship between the employee and the company to whom the labour is provided.For an employer to be looked upon as bypassing the rights of priority rules in a prohibited fashion a number of criteria must be fulfilled. Firstly, the employer must have disregarded the rights of priority and furthermore this act must be proved. Secondly, the employer must have consciously intended to do so. Ultimately, the action, with all specific circumstances taken into consideration, must be seen as tortious. There has been no ruling where labour hire has been determined as an act of prohibited bypassing of the rights of priority but the Labour Court has concluded that it cannot be excluded as a possibility. The rights of priority can only be applied when new staff are employed. Therefore, it is our opinion that an unlawful bypassing of the rights of priority rules could potentially occur when the hiring of an assignee is regarded as a new employment. For this to take place the ?assignee? must be regarded as an employee. However, we find it difficult to see how hiring labour from a labour hire organization could be regarded as an unlawful bypassing of the rights of priority rules. Although the rights of priority differ in some ways for employees in the public sector we still consider that the possibility to utilize labour hire for employers in the public sector, when there are people with rights of priority available, is in principle unchanged in comparison to employers in the private sector.