On 1 October 2022, the new Employment Protection Act came into effect. The change entailed several modifications to the Employment Protection Act. Among other things, the concept of 'general fixed-term employment' was replaced with 'specific fixed-term employment'. This was motivated by a desire from the legislature to safeguard fixed-term employment as a form of employment, as it meets the employer's need for flexibility without achieving a system where permanent labor needs are met with fixed-term employment. The purpose of the concept change and its significance is to achieve a balance by strengthening employment protection and security for employees on fixed-term contracts (see parliamentary bill 2021/22:176). Below, we will discuss what the concept change actually entails.
According to Section 4 of the Employment Protection Act (LAS), the main rule is that an employment contract is indefinite. If an employment is claimed to be fixed-term, the burden of proof lies with the employer. For this reason, it is recommended to have a written employment contract specifying the agreed form of employment.
Section 5 of LAS stipulates the possibility of fixed-term employment agreements. The section states that a fixed-term employment can be entered into for specific fixed-term, for substitute or for seasonal work.
Specific fixed-term employment can be used as a form of employment without any reason for the employment to be fixed-term. This is different from substitute or seasonal employment where a reason or basis is required for using this form of employment.
Previously, general fixed-term employment would become indefinite after two years. According to Section 5a of LAS, the period before the conversion of employment has been shortened.
A specific fixed-term employment can become indefinite in two ways:
The fixed-term employment becomes indefinite even if the employer or employee were not aware of it (see AD 2015 No. 26).
If an employee has had three or more employments with specific fixed-term in a calendar month, the time between these employments will also be counted as employment time.
Each day of the employment duration is counted when calculating the employment time. This means that not only working days are counted, but also weekends. A calendar month according to LAS corresponds to 30 days regardless of the actual number of days in the month.
It should be noted that an employee who has had a specific fixed-term employment for more than nine months in the last three years has a priority right to reemployment in a specific fixed-term employment. Furthermore, it should also be mentioned that the transitional rules do not apply to individuals who have reached the age of 69 when the time limit is exceeded according to Section 33d of LAS.
If the employer rejects that the employment has become indefinite despite the conditions being fulfilled, it is possible to bring a case to court requesting that the employment be deemed indefinite from a certain date.
A specific fixed-term employment cannot, as a general rule, be terminated prematurely but must run for the agreed period. However, the parties can agree that the employment can be terminated in advance. In such cases, there must be valid reasons for terminating the employment, similar to terminating an indefinite employment.
Some collective agreements contain provisions on notice periods for specific fixed-term employment.
It should be noted that dismissal can occur in all types of employment forms if the employee has seriously neglected their obligations towards the employer.
At the request of an employee, the employer is obligated to provide written information about the employee's total length of employment. Such information must be provided within three weeks of the request, according to Section 6g of LAS.
As a general rule, the employer is obligated under Section 6e of LAS to provide written information if the conditions of employment change. However, the employer does not need to provide any information about the conversion to an indefinite employment under Section 6e of LAS if the conversion happens automatically and legally, not through a decision or agreement.
It should be noted that the employer has an obligation to provide written information under Section 6c of LAS, regardless of the length or form of employment. The section states that the employer is obligated to provide written information to an employee about all conditions of essential importance for the employment relationship. Conditions that the employer is obligated to inform about include whether the employment is indefinite or fixed-term.
In conclusion, the major difference in the change of terminology is that the transition time has been shortened and that an employee with a specific fixed-term employment has an earlier priority right to reemployment in a new specific fixed-term employment. Please note that rules on fixed-term employment can also be specified in collective agreements if the employer has one.
In summary, the main difference in the concept change is that the transition period has been shortened and that an employee with a specific fixed-term contract has an earlier priority right to reemployment in a new specific fixed-term contract. Note that rules on fixed-term employment can also be stipulated in a collective agreement if the employer has one.
