This summary of age discrimination law in Sweden has been prepared by Elmzell Advokatbyra, the Ius Laboris member for Sweden: www.elmzell.se
On 1 January 2009 the new Discrimination Act (“the DA”) entered into force. The DA replaced the Equal Opportunities Act and six other anti-discrimination laws. The DA contains provisions against age discrimination as well as provisions against discrimination based on grounds of sex, ethnic origin, religion or other belief, mental and physical disability, sexual orientation and transgender identity, in accordance with the relevant EU-directives e.g. 2000/78/EC.
According to the DA, both direct and indirect discrimination on the basis of age is prohibited. Harassment and instructing another to discriminate are also prohibited. The prohibition against discrimination applies to all aspects of employment: recruitment, vocational training, promotion, terms and conditions of employment, termination of employment and membership in trade unions.
The Equality Ombudsman (“EO”) is a government agency that works against discrimination and for equal rights and opportunities for everyone. EO was formed on 1 January 2009 when the four previous anti-discrimination ombudsmen were merged into a new body.
Exceptions from the prohibition against discrimination
According to the DA, discrimination on the grounds of age, in all aspects of employment, may be justified in the following cases:
- Special treatment, on grounds of age, which is justified by the special nature of the particular occupational activities concerned of the context in which they are carried out. Such a characteristic requires a legitimate aim and that the means of achieving that aim are appropriate and necessary,
- Special treatment, on grounds of age, in collective bargaining agreements (“CBA”) and individual employments contracts, in order to regulate pensions, disability and survivor benefits,
- Special treatment, on grounds of age, if the special treatment is objectively and reasonably justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary.
Who is covered?
The scope of the DA encompasses both the public and private sector, including public bodies and self-employed etc, in relation to
- Working life;
- Labour market policy activities and employment services not under public contract;
- Starting or running a business and professional recognition;
- Membersh ip of certain organisations.
What enforcement/remedies exist?
Two civil sanctions may be applied in a situation where an employee or job applicant is found to be discriminated against, harassed or exposed to reprisals in a way that is prohibited under the DA. These are listed below.
Firstly, all contractual provisions which prescribe or permit discrimination prohibited under the DA shall be declared invalid. If an employee is discriminated by a provision in an individual contract or in a CBA in some way that is prohibited in the DA, the provision shall be adjusted or declared invalid if the employee so requests.
Secondly, an employer who discriminates, harasses or exposes someone to reprisals in a way that is prohibited under the DA, shall pay damages to the person discriminated against for the violation that the discrimination involves and if necessary for the loss that arises. If an employee discriminates another employee or exposes someone to reprisals, the damages shall be paid by the employer of the employee.
The EU anti-discrimination legislation has previously been implemented in Swedish legislation, but this had only a small impact on the Swedish legal system. The Swedish employment legislation still heavily aims on employment protection and the anti-discrimination laws are, in practice, primarily seen as a complement to the current employment protection statues. Non-material damages, i.e. for injury to feelings, in employment law cases are generally low and would amount to a maximum of SEK 120,000 (approximately €12,300).
According to the preparatory work of the DA, damages for discrimination, irrespective of which grounds the discrimination is based on, will be substantially increased with the new DA. However, since the DA entered into force (on 1 January 2009) there has been very few cases where damages has been awarded. It is therefore too early to say how much damages for discrimination will increase.
How common are claims?
The DA entered into force on 1 January 2009 but there are to date no known cases of claims based on discrimination on grounds of age. However, claims on other grounds of discrimination have been frequent in Sweden, with limited success.
What claims are most common and what are trickiest issues for employers?
We expect claims based on age discrimination to be most common in recruitment. Employer’s cutbacks in operations will also hit hard against senior employees causing an increase of age discrimination claims in recession.
A potential source of conflict is the CBAs that give more holidays to older employees. These CBAs may be in breach of the prohibition against discrimination based on grounds of age. According to the Annual Leave Act all employees (with a few exceptions) are entitled to 25 vacation days per year. However, trade unions and employer organizations/employers may agree on other vacation rights by means of a CBA. CBAs in the public sector currently stipulate that employees should have 28 vacation days until the age of 29. This is progressively increased to 35 days from the age of 40. The union confederation LO-TCO, claims that the EU permits unequal conditions if they are justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary. Further, according to LO-TCO, older employees are in need of longer vacation. However, it is doubtful whether this explanation would be accepted by the European Court of Justice.
Another potential source of conflict is the so called “55/10-rule” in many CBAs, that entitles longer notice periods in a redundancy situation for employees older than 55 years and with at least 10 years of seniority.
Are there any specific exceptions in your laws?
There are no exceptions in Sweden.
An employee is entitled to remain in the employment up to the end of the month when he or she reaches the age of 67. After the age of 67 the employee is not protected by the Employment Protection Act and the employer may terminate the employment relationship without just cause. An employer desiring an employee to leave his or her employment after the age of 67 shall give the employee at least one month’s written notice.
There is no interesting case law on age discrimination.