Stronger sanctions for breaches of anti-discrimination laws, data protection considerations, and why the Swedish Football Association was reported for gender discrimination? All of this is covered in our feature on diversity, equality and inclusivity in Sweden.
The Swedish government has commissioned an investigation to review how the enforcement of current anti-discrimination legislation can be made more effective. Many employers are not fully aware of the requirements of Swedish anti-discrimination law and therefore the government believes that there is reason to look at implementing new tools, such as stricter sanctions, to ensure that there are clear consequences for employers who do not take discrimination and harassment seriously. In addition, the government will investigate whether there is a need to implement further measures to protect employees who are subject to discrimination at the workplace from someone other than the employer (such as clients, customers, patients or students).
Current obligations for employers in Sweden
So, what exactly does the Swedish law on anti-discrimination require today? Well, the starting point is that there are seven so-called anti-discrimination grounds; gender, transgender identity or expression, ethnicity, religion or other belief, disability, sexual orientation and age. The purpose of the Swedish regulations is to make sure that no individual is discriminated against in relation to any of the abovementioned grounds. Further, employers must promote equal rights and opportunities in the workplace with respect to the abovementioned categories. In order to achieve this, there is a duty on all employers to continuously take “active measures” by:
1) identifying any risks of discrimination in the workplace,
2) analysing the cause of any risks identified,
3) rectifying any issues identified; and finally
4) following up to identify if any additional actions are required.
Furthermore, this approach should be applied in five different areas of the workplace, namely in respect of (1) working conditions (e.g. jargon, design of workplace premises), (2) salary & employment conditions (are salaries based on employee’s achievements or are there unfounded biases that have affected salaries?), (3) recruitment and promotions (risks of discrimination when recruiting new staff), (4) skills development (do all employees have the same opportunities for continuous development?), and (5) combination of work and parenthood (is the employer facilitating work for employees who are parents, for example by adapting meeting times so that all are able to attend?).
The employer and employee must work together on this, and the employer must put in place guidelines and processes to prevent harassment and reprisals. In addition, the employer must promote equal gender distribution, and complete a salary/compensation survey every year to analyse if there are any differences in salary due to gender. The survey must be in writing for employers with more than 10 employees.
Keeping records – personal data considerations
In workplaces with more than 25 employees, there is a requirement to keep records of the historic and active actions and measures it has undertaken or implemented to prevent discrimination. In doing so, it is important to also consider the restrictions on collecting personal data under the GDPR (General Data Protection Regulation). In other words, how can the employer sufficiently record its work on diversity without breaching the GDPR whilst doing so?
On 5 October 2020, the Swedish Data Protection Authority (which will change its name to the Integrity Protection Authority (Sw. Integritetsskyddsmyndigheten) on 1 January 2021) published guidance for employers regarding the processing of employees’ personal data. The guidance covers, among other topics, the processing of special categories of data.
Whilst the guidance from the Swedish Data Protection Authority does not provide anything new as such, it reiterates that the processing of sensitive personal data (such as religious beliefs, ethnicity or sexual orientation) is prohibited under the GDPR unless there is an exception. One such exception is that processing sensitive personal data is allowed where the processing is necessary for the data controller or the data subject to be able to fulfill the obligations, or exercise the special rights, that exist in employment law (for example in national law or a collective agreement). However, the employer must always follow the basic principles of the GDPR and when sensitive personal data is processed due to an obligation or right in employment law, the employer must ensure that the personal data is accurate and relevant. In addition, the employer must not process more personal data than is necessary for the purpose.
In practice, as the law on anti-discrimination requires that active measures must be recorded and the need to process data must exist at the time of collection and throughout the retention period, the employer should set out and publish clear internal guidelines and routines in relation to both prevention of discrimination and the collection and processing of personal data. This should be a cost-effective compliance step and should also reduce the risk of unwanted behaviour occurring in practice as well as ensuring compliance with the employer’s data protection obligations and protecting its position with regard to processing the data in the event of an alleged breach. This means that an employer, for example in connection with documenting its work on anti-discrimination, needs to consider how the personal data should be collected and that there may be problems with drawing up permanent lists.
In light thereof, the Swedish Equality Ombudsman recommends that the anti-discrimination records should be general in nature, and not refer to or point out individual named employees. In deciding what information to record, the employer must consider the applicable legal basis for the processing, and carefully balance the interest to document the work on anti-discrimination against the individual employees’ interest.
Unequal pay for male and female football players – not discrimination?
But what happens if an employer is suspected of discriminating? Reports of discrimination made directly to the employer must be investigated by the employer. Alternatively, a notification could be made to the Swedish Equality Ombudsman, who may investigate and issue non-binding decisions.
In July 2019, such a notification to the Swedish Equality Ombudsman was made against the Swedish Football Association for paying the Swedish female national football players significantly less than their male colleagues during the 2019 World Cup. It was argued that this constituted gender discrimination. However, surprisingly to many, the Swedish Equality Ombudsman ruled that no discrimination had taken place, because the male and female teams are not in a comparable situation. The compensation received by football players is dependent on outside factors such as audience and marketing revenue. As there was such a discrepancy in revenue generated by the male and female teams, the female players were not deemed to have been discriminated against for having been paid less, as this was in line with the lower revenue generated by the female national football team.
Furthermore, if an employer breaches anti-discrimination legislation, the affected employee or job applicant can sue the employer for compensation (“diskrimineringsersättning”) in the Swedish Labour Court. The Equality Ombudsman can assist the employee with such a lawsuit (but it usually only does so in rare strategic cases where a specific discrimination claim has general public interest).
Employers can also be subject to injunctions issued by the Swedish Discrimination Commission. An injunction means that the employer must pay a fine if it doesn’t comply with a request from the Commission. An example of this from 2016 is the Swedish Armed Forces, which were subject to an injunction under the penalty of SEK 2 million in the case of non-compliance with the obligation to conduct a salary/compensation survey. Needless to say, the required survey was swiftly completed by the Armed Forces afterwards!
By adhering to anti-discrimination regulations, employers can make a difference by creating a workplace free of discrimination. For those who do not, heftier sanctions may await in the final legislative proposal on updated anti-discrimination laws to be presented on 1 October 2021.
