Remedies and enforcement

AuthorLappalainen, Paul
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
- 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.
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
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
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

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