The Labour Court recently declared that an employer need not observe any specific order of priority when providing new jobs to employees in a redundancy situation.(1) Thus, an employer may, at its own discretion, decide on the employees to whom it is going to offer available vacant positions; so-called 'cherry picking' is allowed.
The company conducted business in two different cities in Sweden, A and B (ie, it had two separate operational units). Due to financial reasons, the company decided to close down the business conducted in A and to relocate part of the business to B. In connection with the reorganisation and closure of the business conducted at A, some employees were offered to work at B (vacant positions).
The employees who were offered the vacant positions were cherry-picked at the sole discretion of the company and the job offers were not made to the employees with the longest period of employment. The employees remaining at location A were made redundant.
The trade union argued that the same order of priority that applies in the event of redundancy (ie, the mandatory 'last in, first out' principle stipulated in the Employment Protection Act) should have been applied also when deciding which employees should be offered the vacant positions at B. The trade union argued that since the company had not observed this principle, it should be liable to pay damages.
The court declared that the 'last in, first out' principle is applicable only when employment is terminated due to redundancy (ie, when it is impossible for the employer to provide other work for the employee). In this case, however, the alternative work that the employer provided was available at an operational unit other than that at which the redundancy situation occurred.
For further information please contact Fredrika Skoog or Jennie Lööw at Hamilton law firm by telephone (+46 8 505 501 00), fax (+46 8 505 501 01) or email ([email protected] or [email protected]).
(1) Decision AD 2011:30.