Personal and material scope

• Author: Lappalainen, Paul
• Pages: 36-48

36

3 PERSONAL AND MATERIAL SCOPE

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 https://www.regeringen.se/rattsliga-dokument/statens-offentliga-

utredningar/2006/02/sou-200622/.

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)

http://www.arbetsdomstolen.se/upload/pdf/45-07.pdf.