The consequences of a Higher Education Appeals Board decision to cancel an employment decision
Since the question of what the cancellation of an employment decision actually entails has received a lot of attention recently, we would like to inform you about how SULF perceives the current legal situation.
The Labour Court found in 2016 (AD 2016 No. 74) that a government agency may not terminate an employment contract by referring to the termination of the employment decision by the Higher Education Appeals Board. Neither may the employer cancel the contract for that reason as there are no reasonable grounds for this course of action.
Now the Higher Education Appeals Board, ÖNH, has for the second time taken a decision to void the employment decision for a professor due to formal errors committed during the recruitment process. This decision was submitted to the Swedish Higher Education Authority (UKÄ) as the supervisory authority and to the Government. ÖNH’s decision is perceived as the Board stating that there must be an employment decision that has entered into legal force if the employment is to remain, at least in the case of professors.
SULF’s view is that a decision from ÖNH does not change the fact that an employment contract that has been already entered into is valid despite this decision. If, for example, the university has hired someone as a professor, then they are still employed as a professor. At the same time, the university must, of course, comply with the decision taken by the ÖNH. If, for example, the decision means that ÖNH believes that the person who appealed should have been employed, then this should be done. After this, the university must manage the situation that has arisen in accordance with relevant legislation and collective agreements. This is also the content of the advice from the Swedish Agency for Government Employers. If ÖNH instead takes a decision that the process should be repeated, the university must also do that, which may lead to the recruitment of another, additional person.
The Saco-S associations should, as far as possible, monitor appointment processes so that they are properly managed and that formal errors are avoided. If it is suspected that the recruitment process is not as transparent as it should be, this should be taken up with the employer.
We would also like to draw attention to the fact that an employment contract does not require the employer and the employee to have signed a written agreement. It is sufficient, for example, that the government agency has offered employment and that the employee has accepted the terms of employment.
Questions?
Please contact Robert Andersson, ra@sulf.se if you have any questions.