Compensación por despido injustificado - libre determinación de la Corte:
Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo):
1) Dismissal is invalid:
Compensation for losses in respect of the period following the cessation of employment may not exceed 6 months' pay for less than 6 years of service, 16 months' pay for less than 5 years of service, 24 months' pay for at least 5 years and less than 10 years, 32 months' pay for ten years of service or more."
2) Dismissal is invalid and the employer refuses to comply with the court decision: employment is terminated and damages shall amount to 6 months' pay for less than 6 years of service, 16 months' pay for less than 5 years of service, 24 months' pay for at least 5 years and less than 10 years, 32 months' pay for ten years of service or more.
- The employer is according to sec. 38 EPA liable for damages for loss suffered by the employee as well as pay and other employment benefits to which the employee may be entitled. The economic damages shall however correspond to the employee's actual loss. The employer is furthermore liable for non-economic damages, which is determined according to the the circumstances in the individual case.
- The compensation may however not exceed the amount mentioned in sec. 39 EPA: "6 months' pay for less than 6 years of service, 16 months' pay for less than 5 years of service, 24 months' pay for at least 5 years and less than 10 years, 32 months' pay for ten years of service or more."
- If an employer refuses to comply with a court order that notice of termination or a summary dismissal is invalid, the employer shall according to sec. 39 EPA pay damages to the employee: "6 months' pay for less than 6 years of service, 16 months' pay for less than 5 years of service, 24 months' pay for at least 5 years and less than 10 years, 32 months' pay for ten years of service or more."
Posibilidad de readmisión:
If an employee has been dismissed, without the dismissal being justified by an objective reason, the employee is according to sec. 34 EPA upon request, entitled to have the dismissal annulled. If the court rules that the dismissal is invalid, the employment continues on the same terms as before. Sec. 37 EPA states that if the Court has ruled that the dismissal is invalid, the employer may not suspend the employee from work as a consequence of the circumstances that caused the notice of termination or summary dismissal.
Conciliación previa obligatoria:
Labour Disputes Act 1974, Sect. 7: "An action may not be considered by the Labour Court before such negotiations in respect of the issue in dispute as may be requested under the Employment (Co-determination in the Workplace) Act (1976:580) or as are provided for in a collective bargaining agreement, have taken place". Note that negotiations can only take place between the employer and the employee's union that represents him. Individuals do not have the right to negotiate.
For a dispute to be referred to the Labour Court, there must have been a failed attempt to resolve it through negotiations among the social partners at local or sectoral level or through some kind of arbitration.
Corte o Tribunal competente:
Labour Disputes Act, 1974
The Labour Court has jurisdiction over labour disputes provided that the parties are bound by collective agreements and that they are members of an employers' association or a trade union.
If individual workers want to bring a case on their own, without support from their trade union or because they do not belong to a union, they can only do so in a district court.
Note that in Sweden, around 70 % of workers are union members.
• Labour disputes may be settled through arbitration by agreement. However, certain restrictions apply, such as the restrictions set out in ch.1 sec.3 of the Labour Disputes Act (1974:371).
• Ch.1. sec.3 of the Labour Disputes Act (1974:371): “Disputes to be dealt with under this Act may by agreement be referred for determination by an arbitrator instead. However, this shall not apply to cases referred to in Section 31, first or third paragraph, of the Employment (Co-determination in the Workplace) Act (1976:580). Nor shall any agreement that was concluded prior to the dispute whereby any dispute should be determined by an arbitrator without reservation of the right of the parties to challenge the arbitral award be applied in disputes concerning the right of association or in disputes under
– the Prohibition of Discrimination of Employees Working Part Time and Employees with Fixed-term Employment Act (2002:293); or
– the Discrimination Act (2008:567). (SFS 2008:574)u201d.
• Sec. 31 of the Employment (Co-determination in the Workplace) Act (1976:580): “Where an employer, employee or organisation bound by a collective bargaining agreement has committed a gross breach of such an agreement or of this Act and where such provisions have a fundamental significance on the contractual relationship as a whole, a court may, upon motion of the other party, declare that a collective bargaining agreement by which the parties are bound is no longer applicable to such parties.
Where a collective bargaining agreement has been concluded by several parties on either side or on both sides and where a declaratory judgment has been made under the first paragraph of this Section in respect of only some of them, any other party may, within three weeks thereafter, terminate the agreement on its own behalf with immediate effect.
Where a court determines that particular actions are contrary to a collective bargaining agreement or to this Act, it may, upon application, release an employer, employee or organisation from its obligations under the collective bargaining agreement or this Act, to the extent it cannot be reasonably required that such obligations be fulfilled (SFS 1977:532)u201d.
Duración del procedimiento:
Statistics for 2002.
This figure refers to all the cases brought to the labour court acting as a first instance.