Labour Court: There are 365 days in a year

On 20 May 2018, an employee had been employed in general fixed-term employment at a university for a total of 721 days. According to the Employment Protection Act, a fixed-term employment is transformed into an indefinite-term employment when the employee has been employed by the employer for a total of more than two years during a five-year period. One month prior to the expiry of the employee’s ongoing fixed-term employment, the university offered the employee to come back under a temporary substitute employment, around a month later, which the employee did not accept. Instead, the employee continued going to work a couple of days after the agreed term of his general fixed-term employment had expired. If the employment had transformed into a fixed-term employment on 20 May, the parties agreed that the university had terminated the employee’s employment without legal grounds.

The trade union’s position was that the employee’s general fixed-term employment had transformed into an indefinite-term employment on 20 May 2018, i.e. when the employee had been employed by the university for a total of 721 days. According to the union, the calculation shall be based on that a month consists of 30 days, meaning that two years correspond to 720 days. According to the employer, a calendar year, i.e. 365 days, should form the basis for the calculation. Two years thus consist of 730 days, which had not been reached on 20 May, according to the employer.

The question in this case was thus how the qualification period “a total of more than two years” shall be calculated.

One month consists of 30 days, and a year consists of 365 days

The Labour Court began by stating that neither practice not the preliminary work to the provision nor its predecessor clarify how the qualification period should be calculated, when it is specified in years. The court stated that there are practical reasons and support for that a month consists of 30 days, when the qualification period is stated in months. However, the recognized linguistic interpretation of a year is 365 days. According to the Labour Court, there is no support for that the calculation of a month under the legislation should form the basis of the calculation of a year. The court, therefore, took the employer’s side and established that a year under the Employment Protection Act consists of 365 days. With respect to that every fourth year is a leap year, this means that the qualification period “two years” consists of 731 days (365 x 2 + 1).

Since the employee had not reached a total employment time of 731 days on 20 May 2018, the employer had not unlawfully terminated the employee from an indefinite-term employment. The union’s claims were therefore rejected, and the union was obligated to reimburse the employer for its legal costs.

IUNO’s opinion

It is becoming more common with fixed-term employments on the Swedish labour market. Therefore, as an employer, it is important to keep close track of how long any fixed-term employees have worked for the employer in total, and to – if companies do not want the employee to automatically become employed for an indefinite term, with the difficulties of termination it entails – terminate a fixed-term employment at the right time, and in the right way.

IUNO can help your company to comply with the special rules that apply in relation to fixed-term employees, to avoid any dismissal being voided and the company becoming subject to claims for damages.

[Labour Court Judgement no. 56/2019]