Sham redundancy – when redundancy is actually about you

Redundancy is a common ground for dismissal, and employers have considerable freedom to decide how their business should be organised. The court does not normally assess whether a business decision was wise. However, the redundancy must be genuine.

What does sham redundancy mean?

If what is described as redundancy actually stems from something relating to you personally, such as difficulties working with others, illness, or a conflict, this is known as sham redundancy. The Swedish Labour Court then assesses the dismissal as if it concerned personal reasons. The requirements placed on the employer are then different and often stricter.

Signs that may be worth examining

No single sign proves that a redundancy is a sham, but the following circumstances are usually worth examining more closely:

• The dismissal came shortly after a conflict, criticism you raised, sick leave, or parental leave.
• Only you were affected, even though the restructuring was described as more extensive.
• Someone else was hired, or took over the same duties, shortly after you were dismissed.
• The position was given a new title but involved essentially the same work.
• The employer has been unable to explain what changes are causing the work to disappear.

How is it assessed?

The employer must demonstrate that there are objective reasons for the dismissal. However, where the employee claims that the redundancy is a sham, there must be circumstances indicating this. Documentation is therefore often crucial: emails, organisational charts, job advertisements, and notes of what was said.

The employer must also have considered whether you can be redeployed to other work. In redundancy cases, the employer normally has a duty to negotiate with the union under Section 11 of the Co-Determination Act (MBL) before the decision is made, and the selection-order rules in Section 22 of LAS may apply.

Priority right to re-employment

If you have been dismissed on grounds of redundancy and have been employed for more than twelve months during the past three years, you generally have a priority right to re-employment under Section 25 of LAS. This applies during the notice period and for nine months afterwards, provided you have sufficient qualifications for the new work. If the employer hires someone else in a similar role, this may both breach your priority right and indicate that the redundancy was not genuine.

Act quickly

If you want the dismissal to be declared invalid, you must generally notify the employer within two weeks (Section 40 of LAS). If you suspect that the redundancy is a sham, you can get a free initial assessment of what may need to be examined.