Remedies and enforcement

• Author: Lappalainen, Paul
• Pages: 60-76

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6 REMEDIES AND ENFORCEMENT

6.1 Judicial and/or administrative procedures (Article 7 Directive 2000/43,

Article 9 Directive 2000/78)

a) Available procedures for enforcing the principle of equal treatment

- Judicial proceedings in the Labour Court (starting in the district court if the worker is

represented by someone other than a trade union with a collective agreement or by

the Equality Ombudsman).

- Judicial proceedings in the general court system primarily concerning discrimination

outside of the field of working life.

- If a trade union with a collective agreement represents a member, there must be

negotiations with a view to settling the conflict, which must take place before going

to the Labour Court, according to Section 11 of the Co-Determination Act in

conjunction with Chapter 4, Section 7 of the Labour Procedure Act (1974:371). Cases

are often settled at this stage.

- The Equality Ombudsman negotiates with the employer before going to the Labour

Court.179

- Criminal complaints concerning Penal Code 16:9 concerning unlawful discrimination

can be submitted to the police for prosecution.

It is not possible, as a general rule, to use the administrative courts or procedures to

address discrimination under the Discrimination Act. No administrative body can apply the

Discrimination Act directly. However, there are some situations where a discriminatory

situation can be resolved by an administrative body and through the application of other

laws and regulations. If, for instance, a parent gets a decision from the School Appeal

Board concluding that the accommodation costs necessary for accepting their child to a

school are not substantial,180 the school must take on those costs. This means that the

discrimination issue has been resolved, but at the same time the decision does not lead to

an award of discrimination compensation. Some state employment decisions, due to rules

in the Instrument of Government (Constitution) concerning objective grounds on hiring,

can be appealed through administrative proceedings.181 If the claimant is better qualified,

he or she is entitled to get the job, but not a discrimination compensation award. Under

the Discrimination Act, a court can only grant a discrimination compensation award but not

the job. Thus, using these administrative procedures is sometimes an alternative or

complementary way to appeal against a discriminatory decision.

Along the same lines, on 1 July 2017 a mechanism was introduced in the education sector

to bring an alleged violation of the Discrimination Act to the Higher Education Appeals

Board in some situations. However, this does not include any possibility of obtaining a

discrimination award; it is only possible to correct the discriminatory act or omission, for

instance by replacing a tutor who has discriminated against a student.182

Relevant criminal procedures may be initiated by a public prosecutor (or in very rare cases

by the private party). The Ombudsman does not have legal standing before the courts in

criminal procedures.

179 The law does not require this but having the Labour Court as the only instance presupposes well-prepared

cases, and that includes these negotiations. Chapter 4, Section 3 of the Discrimination Act gives the Equality

Ombudsman the power to issue an order subject to a financial penalty (which can be appealed to the Board

against Discrimination) if the employer does not show up.

180 School Act (Skollag) (2010:800), Chapter 9, Section 15 in conjunction with Chapter 28, Section 12(6).

181 Instrument of Government, Chap. 12, Art. 5 (2): ‘When making appointments to posts within the State

administration, only objective factors, such as merit and competence, shall be taken into account.’

182 Act (2017:282) changing the Discrimination Act.

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In the Labour Court, a trade union or the Equality Ombudsman can act on behalf of the

worker; in the general court system, the Equality Ombudsman can act on behalf of the

claimant.

One of the tasks of the Ombudsman is to investigate complaints of discrimination. This

includes the provision of advice, but also – at the Ombudsman’s discretion – of representing

the victim of discrimination in settlement proceedings or, ultimately, in a court of law.

Should the individual concerned be a member of a trade union, the right of the Ombudsman

is subsidiary to the right of the trade union to represent its member.

Civil proceedings regarding working life under the Discrimination Act are to be dealt with

in accordance with the Labour Disputes Act.183 Depending on whether the employer is

bound by a collective agreement, whether the person who alleges discrimination is or is

not a member of the trade union with the collective agreement, and whether the trade

union is willing to take up the claim, the case may be heard in the first instance either by

the district court (tingsrätt) with ordinary judges as in other civil cases, or the Labour Court

(Arbetsdomstolen), in a special composition comprised of a majority of judges with a

judicial background and a minority of members with a background in labour market

organisations.184

Whereas it is the injured individual (or an NGO) who has standing (locus standi) as the

claimant at the district court, it is the trade union that takes that position when claims are

dealt with at the Labour Court as the first (and last) instance. A lawsuit taken to the district

court in accordance with the described rules may always be appealed to the Labour Court,

whereas a decision of the Labour Court – whether as the first or second instance – is not

subject to further appeal. As has already been indicated, the Ombudsman can also bring a

case directly to the Labour Court. When the DO takes on a claimant’s case and the claimant

provides a power of attorney, the DO becomes the named party in the case.

The Equality Ombudsman may represent victims of discrimination in all areas covered by

the Discrimination Act. Cases outside working life will be dealt with by the ordinary court

system, i.e. the relevant district court in the first instance. Discrimination in connection

with social security, for instance, (an example of an area that normally falls under

administrative law) is thus dealt with under the general court system, and the ordinary

rules on civil procedure apply.185

The relatively few cases that end up in the court system should not be taken as proof that

action is not taken in cases of discrimination. A number of cases are presumably settled

out of court. The same is probably true concerning the trade unions. Most complaints are

settled during the mandatory negotiations prior to a claim being presented to the Labour

Court. In cases that are settled, the remedies are pretty much the same as those that

apply in the case law of the Labour Court. At times though a settlement can involve better

results, since settlements are not necessarily limited to economic compensation. For

example, a settlement can include compensation combined with employment, which is

something a court could not order. Legal costs can also be reduced through settlement s.

b) Barriers and other deterrents faced by litigants seeking redress

With regard to discrimination cases, inside as well as outside the labour market, there are

various obstacles for potential discrimination litigants, such as low levels of rights

awareness, low levels of trust in the legal system, low levels of experience with lawyers

and the legal system and limited awards if successful. These factors tend to complement

183 Act (1974:371) on Labour Law Procedure.

184 As regards the Swedish Labour Court, see, for instance, the European Court of Human Rights, AB Kurt

Kellermann v Sweden, No. 41975/98, judgment of 26.10.2004.

185 Some university or higher education cases may also be brought before the Board of Appeal for Higher

Education.