Recent debate in Sweden regarding new case law on employer's liability for employee's suicide

09 May 2014

Katarina Åhlberg, Kajsa Wahrenby

A recent Swedish judgement brings attention to the employer's work environment obligations with regard to psychological and psychosocial risk management.

In June 2010, a 53 year old social worker in the small town of Krokom in northern Sweden committed suicide on the same morning as a meeting was supposed to be held between him and employer representatives regarding his employer's intent to summarily dismiss him. During the year leading up to that meeting, the employee had suffered from depression and had claimed that he was being subject to victimization and bullying from his new supervisor. The problems between him and his supervisor were well known in the workplace and the employee had at numerous instances unsuccessfully asked to be redeployed to a different position.

Two managers bearing the formal work environment responsibilities (the supervisor accused of victimization was not one of them) were subsequently prosecuted for causing the employee's death through criminal negligence and gross recklessness, and specifically by failing to comply with the employer's obligations under the relevant work environment legislation. Both managers were convicted in February 2014 by the District Court of Östersund and were given conditional sentences combined with fines.

According to the judgement, the failure of the managers to conduct systematic work environment management and risk assessment in the workplace, as well as their failure to properly handle the employee's problematic situation and illness, were causal to the employee's suicide. The court also emphasizes the fact that the managers in question summarily dismissed the employee without there being legal grounds for such dismissal (and without considering whether or not such legal grounds existed), while being well aware of the employee's mental state. Further, one of the managers admitted to having feared the employee's suicide.

By reading the judgement, it becomes quite clear that the employer was in breach of its obligations under the Swedish Work Environment Act and the related regulations issued by the supervising Work Environment Authority, especially with regard to the rules regarding bullying, victimization and other forms of inappropriate behaviour.

Regardless of the substance of the employee's claims of victimization and bullying, the court found that the employer was, for example, obligated to perform a proper investigation of them. In this case, an investigation was performed by one of the prosecuted managers. The investigation consisted, however, merely of an interview with the employee's supervisor, after which it was concluded that no inappropriate behaviour had taken place. None of the employee's colleagues were interviewed, despite them having brought the employee's ill-health to the managers' attention as well as being witnesses to certain situations involving the employee and the supervisor.

The judgement is interesting since there is no precedent of a similar situation, and the case has spurred a debate in Sweden regarding an employer's responsibility and potential criminal liability for an employee's suicide. It should, however, be noted that the judgement to some extent has been misconstrued in the public debate; the case contained some very particular circumstances and employers should therefore not be led to believe that any general principles regarding employer's liability for an employee's suicide have been established. In addition, the judgement has been appealed and the final outcome of the case is therefore still uncertain.

Further, the judgement lacks some substantial analysis regarding the causal link between on the one hand the employer's neglect to observe the work environment rules and the summarily dismissal of the employee, and on the other the employee's suicide. The Appellate Court will hopefully provide further analysis in this respect, regardless of the outcome of the appeal.

To conclude, employers' work environment obligations have in our opinion not been extended by this judgement. For an action or a failure to act to be considered causal to an individual's suicide, the threshold will remain very high. The judgement nonetheless illustrates the employer's responsibility to perform objective and thorough investigations, not only of physical but also of psychological and psychosocial issues and risks. Employers may need more training on methods and actions on the psychosocial side; historically, the focus has been on how physical illnesses and accidents may be avoided. However, employees' right to their personal integrity certainly complicates the employer's risk analysis in this area.