Personal and material scope

AuthorLappalainen, Paul
3.1 Personal scope
3.1.1 EU a nd non -EU nat ionals (Recit al 13 and Article 3(2), Directive 2000/43
and Recital 12 and Article 3(2), Directive 2000/78)
In Sweden there are no residence or citizenship/nationality requirements for protection
under the relevant national laws transposing the directives.
In principle, persons with irregular status are entitled to the protection of the directi ves.
3.1.2 Natural and legal persons (Recital 16, Directive 2000/43 )
a) Protection against discrimination
In Sw eden, th e person al scop e of anti-discrimination law covers all natural persons but
does not cover legal persons for the purpose of protection against discrimination. This does
not follow from a specific section. Some Sections of Chapter 2 of the Discrimination A ct
contain wording such as ‘the jobseeker’, ‘the child, pupil or student’ and so on, where it is
obvious that a legal person cannot fall under the protected category. In other cases where
the wording is unclear, there is a general statement in the preparatory works that legal
persons are not protected.100
The Discrimination Act thus generally protects natural persons.101 Nevertheless, as regards
the act’s applicability to working life, the general concept of ‘employee’ is a compuls ory
concept, which is not for th e parties concerned to decide upon. Within this concept it is
perfectly possible for the Labour Court, in the last instance, t o look beyond or ignore the
fact that a contract may be agreed between the employer and a legal entity run by the
‘employee’ alone.
In 2006, the Discrimination Inquiry Commission proposed a protection for legal persons in
a number of (but not all) areas cove red by non-discrimination legislation.102 Most of the
consultation responses were positive, with several of the discrimination ombudsmen at the
time asserting that the proposal should go further. However, the Government rejected this
in the final bill that became law , indicating that furth er analysis was needed and that
coverage of legal persons was not an explicit requirement of the directives.103 Thus legal
persons still have no explicit protection, which is potentially a problem in relation to
Directive 2000/43.
b) Liability for discrimination
In Sweden, the personal scope of anti-discrimination law covers natural and legal pe rsons
for th e purpose of liability for discriminat ion. The different Sections of Chapter 2 of the
Discrimination Act refer to the ‘employer’, the ‘service provider’ and so on. It is clear from
the wording that both natural and legal persons are covered.
In one interesting example, Labour Court case 2007 No. 45, the employee who sent a
discriminatory email to a job applicant was not authorised to make decisions regarding the
job application of th e Iranian job applicant concerned.104 The employee did not represent
100 Government bill 2007/08:95, p. 91.
101 Government bill 2007/08:95, p. 90.
102 White paper SOU 2006:22, En sammanhållen diskrimineringslagstiftning, (A Cohesive Discrimination
Legislation) p. 332ff. Available at
103 Government bill 2007/08:95, pp. 90-91.
104 Labour Court 2007 No. 45 Ombudsman Against Ethnic Discrimination v Laika film & amp (16.05.2007)

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