Sweden: Following a transfer of undertakings, regular periods of intermittent employment in connection with the transfer shall be included when calculating an employee’s aggregate time of employment

An employer conducting business in the harbours of Gothenburg and Stockholm dismissed two employees due to redundancy. Both employees had previously been intermittently employed in companies that had been transferred to their current employer’s business, in accordance with the regulations on transfer of undertakings (TUPE). The employees’ trade union claimed that intermittent employments prior to the transfer should be included when determining selection for redundancy based on the “last in, first out” principle, i.e. that the employees had a longer aggregate time of employment and thus a better position on the ”last in, first out”-list than what the employer claimed.

As the employer had not considered such employments when determining aggregate time of employment, the trade union claimed that the employer had breached the order of priority and that the dismissals had been made in violation of Swedish law.

The Labour Court examined how often and at what time the intermittent employments had occurred and, while the first of the employees had been employed regularly in connection with and after the transfer, the second employee had not been employed for a period of two months prior to the transfer. As such, the Court deemed that only the first employee was entitled to have previous employments included in the calculation of the employee’s aggregate time of employment. Thus, the Court found that the employer was liable to pay damages amounting to SEK 50,000 to the first employee, but dismissed the claim as regards the second employee.