The usage of temporary work agencies services is increasing in the Swedish labour market and it has also caused some problems. There have been cases where employers have been accused to circumvent the preferential right to reinstatement by using temporary agency workers rather than rehire preference eligible employees during labour need.
The purpose of this thesis is to describe, analyse and enhance the understanding of the preferential rights to reinstatement and study when hiring of temporary agency workers, during the period when there is preference eligible former employees, is permitted. The method being used in this thesis has been applied with particular attention to the directives, laws, legislative history and doctrine.
The preferential rights to reinstatement in 25-27 §§ of the Employment Protection Act is a protection which states that the employer has to hire employees or former dismissed employees during increased labour needs. The purpose of this right is that an employer should not be able to terminate an employee due to redundancy and then later hire new employees. An employee is entitled to the preferential right as he/she meets the criteria of the Employment Protection Act. An increased labour need does not guarantee preference eligible workers a reinstatement. The employee must be qualified for the position.
In order for an employer's action to be considered as circumvention of the preferential rights, requires that the action claiming to be circumventing is substantiated, was meant to avoid the preferential right and been unfair considering the circumstances of the individual case.
The preferential right can only be applied in hiring situations. The usage of temporary agency workers is not included in the concept of hiring new employees and is therefore a permitted action during the preferential rights period. A law change should take place since the preferential right no longer fulfils its purpose.
2013. , 40 p.