Sensitive or controversial issues

AuthorLappalainen, Paul
Pages98-100
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
- 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
- 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
- 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/.

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