On 1 January 2017, amendments were made to the Swedish Discrimination Act (Sw. Diskrimineringslagen (2008:567) (the "Discrimination Act"). As of this date, employers and educational institutions will have a duty to take "active measures" in relation to all so called "protected characteristics" in order to prevent and counteract discrimination within the organisation. A short summary of the most important changes are briefly set out below.
The previous rules regarding active measures imposed different requirements on different protected groups. For example, before 1 January 2017, active measures were only required in relation to three of seven of the protected characteristics in the Discrimination Act (i.e. sex, gender identity, ethnic identity, religion or other belief, disability, sexual orientation and age).
Active measures are defined as "preventive and encouraging measures taken within an organisation to prevent discrimination, as well as working towards equal rights and opportunities for all individuals within the organisation, regardless of the individual's sex, gender identification, ethnic origin, religion or belief, disability, sexual orientation or age".
This entails that active measures, among other, aims at changing organisational structures that may lead to individuals being discriminated against, as well as preventing organisations from excluding a larger group of individuals that may be associated with one or more of the abovementioned protected characteristics. Accordingly, active measures requires that measures are taken in order to prevent and avoid discrimination within the organisation, and is thus not to be interpreted as acting in response to an incident that may be deemed discriminatory.
According to the preparatory works, active measures include the following four steps:
- Investigation of whether or not there are any risks for discrimination, harassment, sexual harassment, reprisals or any other risks that may negatively affect one or several individuals' equal rights and/or opportunities within the organisation. Such investigation may include establishing routines, guidelines, policies, conducting surveys, individual or group interviews etc.
- Analysis of any identified risks,
- On the basis of the above investigation, employers and educational institutions shall take reasonable measures to prevent discrimination and enhance equal rights and opportunities within the organisation. Whether or not the measures taken reasonable will be determined on a case by case basis.
- Follow up and evaluate the work done in relation to the above (1-3) steps.
The documentation requirements under the previous rules required employers and educational institutions to prepare time plans for salary surveys. Now, the active measures required to be taken under the new rules must be documented. Further, whilst the previous rules required employers to prepare plans in relation to equal pay and equality work once in every three years, the new rules demand that all active measures are documented once a year. This requirement applies to organisations with 25 or more employees. Organisations with between 10 and 24 employees are only required to document the work made in relation to salary surveys. Organisations with less than 10 employees' have no such obligation.
Contrasts between Swedish and Danish legislation
(comments provided by Bird & Bird's employment team in Denmark)
Similar rules exist under the Danish Discrimination Act (Da: "Forskelsbehandlingsloven"), but, to a much more limited extent than under the new Swedish rules. In Denmark "active measures" are only required in relation to employees with disabilities. Thus, employers are not required to take active measures in respect of the other protected characteristics (i.e. sex, gender identification, ethnic identity, religion etc.).
Furthermore, it is not a legal requirement – as provided under the Swedish rules - to document the type of "active measures" taken at an early stage. In Denmark, documentation is often only relevant if a disabled employee raises a claim for compensation due to discrimination under the Danish Discrimination Act. However, documentation throughout the process is always recommended. In short, it appears that Swedish law affords wider protection than Danish law.
Contrast between Swedish and Finnish legislation
(comments provided by Bird & Bird's employment team in Finland)
The Finnish Non-Discrimination Act requires that employers take measures to promote equality within its organisation. One of these measures concern employers that employ 30 or more employees. These employers must, as of 1 January 2017, have a plan for necessary measures that promotes equality within the workplace. Further, under Finnish law, an individuals' state of health, family relationship as well as other personal characteristic is also counted as a protected characteristic. Consequently, the Finnish Non-Discrimination Act provides a non-exhaustive list of protected characteristics.