In three recent judgments, the Swedish Labor Court and the District Court of Jönköping have ruled on whether or not an employee or a jobseeker had been subjected to unlawful discrimination. As these cases illustrate, claims regarding discrimination may arise from a number of different situations, including dismissal, employment benefits and recruitment.
The termination of the employment of an employee who suffered from dyslexia was not discriminatory
In a recent judgment (AD 2015 no. 57), the Labor Court ruled that the termination of the employment of an employee who had dyslexia, ADHD and narcolepsy was not discriminatory. The employee argued that he had been dismissed due to his disabilities, whereas the employer argued that the termination of the employment was on the grounds of redundancy.
The court noted that the employer had commented on the employee's performance and that the employer had been aware of the fact the employee had dyslexia, which, according to the court, amounted to a disability. The employment was terminated only months after the employer had found out about the employee's disability. Accordingly, the court found that the facts allowed for the presumption that the termination of the employment had in fact been on the grounds of the employee's dyslexia.
The court held, however, that the employer had presented enough evidence to rebut this presumption and had shown that the termination of the employment was indeed on the grounds of redundancy. The company's business had been reorganized and there was nothing to suggest that the position held by the employee was not redundant. Furthermore, even if the dismissal was partly based on the employee's sub-performance, the employer's decision to terminate the employment was not connected to the employee's disability. The court noted that the employer had commented on the employee's poor performance long before finding out about his dyslexia. Thus, the court held that the termination of the employment was based on objective grounds and that it had not been discriminatory.
While the company could, in that case, show that the termination of the employment was in fact on the grounds of redundancy rather than the employee's disabilities or even his general performance, companies should always make sure that they don't make comments about an employee's performance in a redundancy situation, especially when the employee is disabled. As the case shows, such comments may expose the company to claims that the termination of the employment is discriminatory. In such a scenario, it will often fall on the company to show that the termination of the employment was not based on discriminatory grounds, which may be difficult in certain cases. It is also important to note that the court held that dyslexia constitutes a disability and that, accordingly, employees with dyslexia may not be disfavored on account of their condition.
Employee who had taken leave to care for his sick child was not entitled to a certain monetary benefit
In another judgment (AD 2015 no. 58), the Labor Court ruled on whether making the receipt of a certain monetary benefit conditional on a minimum number of hours being worked constituted less favorable treatment of an employee who had taken temporary leave to care for his sick child (referred to as "VAB"). The monetary benefit in question was paid on top of the employee's ordinary salary for actual hours worked in excess of a certain threshold. As a result of being on leave to care for his child, the employee had not been able to reach the threshold and was thus not awarded the benefit. The employee argued that the employer should have lowered the threshold for him and paid him the benefit for hours worked in excess of the (lowered) threshold. Failure to do so meant that he had been treated less favorably than others due to him being on temporary leave to care for his sick child, in breach of the Parental Leave Act.
The court noted that it is a basic principle of an employment contract that the employee receives pay only for such hours that he or she has actually worked or has been available to work. In light of this principle, the court held that failing to adjust the threshold did not constitute unfavorable treatment of employees who take temporary leave to care for their children. On the contrary, as the benefit was based on actual number of hours worked, if these employees were awarded the benefit, although they had worked fewer hours than others, it would constitute unfair treatment of other employees, in particular those who were available to work but had not actually performed work. Thus, the court held that the employer was not in breach of the Parental Leave Act.
The court has followed established case law, which states that a reduction in salary and benefits is a necessary consequence of a leave of absence, and applied this also in relation to the possibility to receive "additional" monetary benefits. As such, companies should be able to maintain similar thresholds for certain benefits. However, this should not be done without careful consideration and analysis. In this case, the employer was a temp agency (Sw: Bemanningsföretag) and the benefit and the threshold followed from the applicable collective bargaining agreement for temp agencies (Sw:Bemanningsavtalet). As the principles of remuneration set out in this collective bargaining agreement are to a large extent determined by the particular nature of temp agency work, it is not certain that the court would come to the same conclusion in a case concerning benefits provided by companies in other lines of business.
Midwife who was unwilling to perform abortions was not subjected to unlawful discrimination
In a recent case (T 1781-14) from the District Court of Jönköping, a woman had applied for numerous positions as a midwife, but had not been offered employment. The express reason for not hiring her was that she was unwilling to perform abortions, due to her religious beliefs. The woman claimed inter aliathat the hospitals' decision not to hire her amounted to discrimination on the grounds of religion.
The District Court held that the woman had not been subjected to unlawful discrimination. According to the court, the employer had applied a criterion for the position as midwife – to be able to perform abortions – that was indirectly discriminatory, since it put individuals with a particular belief at a disadvantage compared with others. Nevertheless, the court found that the criterion was legitimate. The purpose of the criterion was to safeguard the right for women to obtain an abortion, and the hospitals were dependent on all midwives being able to participate in all operations performed in the obstetrics ward. Thus, the criterion was an appropriate and necessary means of fulfilling a legitimate objective, and therefore did not amount to unlawful discrimination.
As this case illustrates, companies are not prohibited from applying a criterion when recruiting that indirectly discriminates against certain groups, if the criterion is necessary to fulfil a legitimate objective. In this case, the interest of the employer in being able to organize its business efficiently coincided with the right for women to obtain an abortion – two interests which together outweighed the interest of the applicant not to be discriminated against on the grounds of her religious beliefs when applying for a job. The case has been appealed, so it remains to be seen whether or not the Court of Appeal will agree with the judgement of the District Court.
Comments on the cases from a Finnish perspective:
In Finland, most discrimination claims have traditionally related to gender discrimination or discrimination based on taking parental leave. However, in recent years, we have observed that discrimination claims have become increasingly common and diverse. As the above cases illustrate, discrimination claims can relate to many aspects of employment. Also in Finland, employers should evaluate carefully potential discriminatory measures in such situations, bearing in mind that they must always be able to justify them on objective grounds.