AGE DISCRIMINATION INTERNATIONALLY

SWEDEN

Elmzell Advokatbyra
www.elmzell.se

Overview

There is currently no prohibition against discrimination on grounds of age in Swedish legislation. However, on 1 January 2009 the new Discrimination Act (“the DA”) will enter into force, containing several amendments to the currently existing legislations in the fields of anti-discrimination. The DA will replace the Equal Opportunities Act and six other anti-discrimination laws. The DA will contain 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 instruction to discriminate are also prohibited, as is failure to take active measures against discrimination. The prohibition against discrimination apply to all aspects of employment e.g. recruitment, vocational training, promotion, conditions of employment and termination of employment, membership in trade unions/ employers organisations.

In Sweden there are only national laws against 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:   

Who is covered?

The scope of the DA encompasses both the public and private sector, including public bodies and self-employed, protecting persons of all ages from discrimination on grounds of age.

what enforcement/remedies exist?

Three 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:

• All contractual provisions which prescribes or permits discriminations prohibited under the DA shall be 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 employer so request.
• 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 against another employee or exposes someone to reprisals the damages shall be paid by the employer of the employee,
• Failure to take active measures against discrimination does not constitute grounds for damages. Instead, the employer may be ordered, subject to a default fine, to comply with his or her obligations according to the DA.

The EU anti-discrimination legislation apart from age discrimination has previously been implemented in Swedish legislation however with a small impact on the Swedish legal system. The Swedish employment legislation still heavily aim on employment protection and the anti-discrimination laws is, in practice, primarily seen as a compliment 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 EUR 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.

How common are claims?

Since the DA will enter into force on 1 January 2009, there are up 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 CBA’s that give more holidays to older employees. These CBA’s 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. CBA’s 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 CBA’s, 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.

Retirement ages

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

Interesting cases

As mentioned above, the DA has not entered into force. Therefore it is up to date no case law in this matter.

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