Sensitive or controversial issues

• Author: Lappalainen, Paul
• Pages: 98-100

98

11 SENSITIVE OR CONTROVERSIAL ISSUES

11.1 Potential breaches of the directives at the national leve l

Generally, Sweden fulfils the requirements set by the directives. However, in the opinion

of the author, the following points are problematic:

- Compared with the general court system, the Labour Court seems to apply the rules

on burden of proof more restrictively towards the claimant. The 2017 dentist case is

the first essentially similar case that has been tried in both systems and clearly

demonstrates this difference. The Labour Court’s practice does not seem to be in

compliance with the directives, while the practice of the civil courts seems to be

compliant. This may be one of the reasons why it seems to be very hard to win cases

of ethnic discrimination in the Labour Court (see section 6.3 as well as Article 8

Directive 2000/43 and Article 10 Directive 2000/78).

- Discrimination against legal persons is not prohibited in working life (see section 3.1.2

and Recital 16, Directive 2000/43).

- The principle of vicarious liability in relation to discrimination law is restricted when

employees in theory act outside their authority to an extent that is problematic.

Furthermore, the legal concept of ‘employer’ may be too narrow, as the employer is

regarded as the legal person itself or the natural person who, as a representative of

this legal person, makes decisions regarding the employees. The employer is thus

directly responsible only when an employee discriminates against another employee

and the latter is subordinate to or dependent upon the former. This type of limitation

brings up the question of whether the directive has been transposed in the correct

manner (see sections 3.1.2.b and 3.2.1, and Articles 7 and 15 Directive 2000/43 and

Articles 9 and 17 Directive 2000/78).

- In cases concerning recruitment, including promotion cases, there is no right to

economic compensation (see section 6.5.a and Article 15 Directive 2000/43 and

Article 17 Directive 2000/78).

- The Equality Ombudsman currently has a case before the CJEU (see below in Section

12.2, Supreme Court, 18 December 2018). The Ombudsman was not satisfied with

the general Swedish procedural rule that would allow an opposing party in a civil case

to pay the amount sued for without admitting liability for discrimination or getting an

authoritative judgment establishing discrimination. The Supreme Court, after an

appeal by the Ombudsman, issued a decision requesting a preliminary ruling from

the CJEU. The question submitted was:

‘Must a Member State in a ca se of infringement of a prohibition laid down in

Directive 2000/43/EC, where the victim requests discrimination compensation,

always examine whether discrimination has occurred - and, where appropriate

issue a finding of discrimination - whether or not the accused has or has not

acknowledged that discrimination occurred, if this is requested by the victim,

in order for the requirement in Article 15 on effective, proportionate and

dissuasive sanctions to be considered fulfilled?’

This case will be decided by the CJEU in early 2020.301 If the CJEU agrees with the

DO, the results could have far-reaching effects for both Swedish law and EU law, not

just in respect of equality law but in various other fields as well (see Articles 7, 8 and

15 of Directive 2000/43 and Article 47 of the Charter of Fundamental Rights of the

European Union).

301 Supreme Court, Ö 2343-18 (2018.12.18), Equality Ombudsman v Braathens Regional Aviation (BRA) at

http://www.hogstadomstolen.se/Avgoranden/Begaran-om-forhandsavgorande/O-2343-18/. In brief, the DO

brought a lawsuit for SEK 10 000 (EUR 950) against the airline for ethnic discrimination concerning a

passenger. The airline paid the money but did not accept liability, leading the DO to request a finding of

discrimination. The court refused as this was not needed according to the rule of civil procedure. This issue

was appealed to the Supreme Court, which led to the request for a preliminary ruling. For more information

see the DO’s website at http://www.do.se/lag-och-ratt/diskrimineringsarenden/flygbolaget-bra/.