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 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 discrimination on the grounds of age, 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 which supports equal rights and opportunities and works to eliminate discrimination.
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, 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 in collective bargaining agreements (“CBA”) and individual employments contracts, in order to regulate pensions, disability and survivor benefits; and
- Special treatment that 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 sectors, including public bodies and individuals who are self-employed, in relation to
- Working life;
- Labour market policy activities and employment services not under public contract;
- Starting or running a business and professional recognition;
- Membership of certain organisations.
- Goods, service and housing etc.;
- Health and medical care and social services etc.;
- Social insurance system, unemployment insurance and financial aid for studies;
- National military service and civilian service.
WHAT ENFORCEMENT/REMEDIES EXIST?
Two civil sanctions may apply if 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.
Firstly, all contractual provisions which prescribe or permit the types of discrimination prohibited under the DA shall be declared invalid. If an employee is discriminated against by a provision in a contract or in a CBA, the provision shall be amended accordingly 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 perpetrator.
The EU anti-discrimination legislation has a limited impact on the Swedish legal system. Swedish employment legislation still heavily aims to protect employees and the anti-discrimination laws are, in practice, primarily seen as a complement to the current employment protection statutes. Non-material damages, i.e. for injury to feelings, in employment law cases are generally low and would amount to a maximum of SEK 125,000 (approximately €12,500).
Since the DA became effective, there have been few cases where damages have been awarded perhaps due to the fact that most claims are resolved between parties prior to litigation.
HOW COMMON ARE CLAIMS?
Discrimination claims have become more common in Sweden but there are no official statistics on how many discrimination claims that are filed in Sweden per year. Claims based on a characteristic associated with ethnicity and disability are the most common, followed by claims based on sex and age.
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?
Claims based on age discrimination are most common during recruitment. Employers’ cutbacks in operations also tend to affect senior employees, which then causes a surge of age discrimination claims in times of recession.
ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAWS?
There are no exceptions in Sweden.
An employee is entitled to remain in 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. If an employer wishes to terminate the employment of an employee who has reached the age of 67, it must provide the employee with at least one month of written notice.
One case, in 2011, concerned an airline company that dismissed a large number of employees in the cabin crew due to shortage of work. The trade union and the airline company had agreed upon a collectively agreed redundancy list and according to the list, all employees whom were 60 years old were dismissed. The list also stated that the dismissed employees not were entitled to re-employment according to the Employment Protection Act.
In Sweden, employees with a longer period of employment shall have priority before employees with a shorter period, the so-called “last-in-first-out principle”, i.e. notice is given to employees with shorter service.
The employer claimed that there was a legitimate aim for the dismissals of the older employees since the employees were entitled to taking their pension, which younger employees weren’t.
The Labour Court found that the dismissals constituted direct age discrimination. The aim to ensure younger cabin crew their income was, according to the Labour Court, a legitimate aim, since the older cabin crew could get income from their pension pots. However, the special treatment was not objectively and reasonably justified. The right to work until the age of 67 is stated in the Employment Protection Act. Consequently, it was not an appropriate measure – in order to achieve the legitimate aim in this case – that a collectively agreed redundancy list stated that 60-year-old employees could be dismissed. The dismissals were declared invalid under the Discrimination Act and the affected employees were granted € 12,500 each.
In another case regarding a 2014 ruling in relation to a bus, mobility and patient service company, the employer had denied three people new employment as drivers because they had reached the age of 70. The employer claimed that the legitimate aim was road safety. The Equity ombudsman brought an action against the employer, claiming that the act was unlawful age discrimination. The employer claimed that it was a matter of permissible discrimination under the Discrimination Act.
The question in this case was whether the “70 years rule” could be regarded as a genuine and determining occupational requirement for work as a driver in the current business. The Court found that although the “70 years rule” was not in itself a requirement, certain physical abilities can constitute a genuine and determining occupational requirement in this case. Secondly, the question remained whether the general age limit was appropriate and necessary in order to achieve the legitimate aim road safety. The Labour Court found that the employer did not convincingly show that the general age limit was an appropriate and necessary measure for achieving the legitimate aim to increase road safety. The Court considered that other measures could be taken (medical checks, etc.) in assessing the physical and mental abilities of drivers, and thus the age limit was prohibited.
As the Court found that the employer did not intentionally discriminate against the employees, the financial damages awarded to the employees were limited to €4,000.