Article 15 - Freedom to choose an occupation and right to engage in work
Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
A woman, A.A., with a disability, which allows her to work 50 percent of full-time, has on three occasions applied for or made a request enter into a framework agreement with a temporary employment agency (bemanningsföretag) and thus become part of the group of persons whom the company can employ on a temporary basis and and hire out for work at customer companies, when the need arises. The company employs persons with "other employment of at least 50 percent" for such fixed-term employment, which is motivated by the collective bargaining agreement (kollektivavtalsregleringen). Since she informed the company that she had a half-time sickness compensation (sjukersättning), the woman has been told by the company that she could not be considered for employment at the company when she, according to the company, did not meet the requirements for being employed by the company. The dispute concerns whether the company through its statements to A.A., but also through the establishment and maintenance of a requirement for another employment of at least 50 percent, has exposed A.A. to direct or indirect discrimination on the ground of her disability.
According to the collective bargaining agreement for workers working at temporary employment agencies, these agencies can enter into agreements on fixed-term employment with students and with the persons with different forms of retirement.
The temporary employment agency argued that it only followed the collective bargaining agreement. The Equality Ombudsman (Diskrimineringsombudsmannen), acting on behalf of A.A., argued that the collective bargaining agreement could have been interpreted to include persons with 50 percent sickness compensation since it includes others with other state benefits (pensions). The strict interpretation of the temporary employment agency is therefore an indirect discrimination of A.A. and others in her situation.
The Equality Ombudsman acting on behalf of A.A. has invoked several sections of the Discrimination Act (Diskrimineringslag [2008:567]) – section 4 and 5 of chapter 1 (stipulating what constitutes discrimination), section 1 of chapter 2 (stipulating employers responsibility to guarantee non-discrimination), section 1 and 3 of chapter 5 (stipulating the discriminated’s right to compensation and stating that discriminating collective bargaining agreement should be considered invalid), and section 3 of chapter 6 (stipulating that the burden of proof lies on the potentially discriminating party). The Equality Ombudsman also invoked Articles 15 and 47 of the EU Charter of Fundamental Rights (EU Charter of Fundamental Rights) in support for their argument that the collective bargaining arrangements should be aligned or cancelled. Article 15 states that everyone has the right to work and exercise a freely chosen or accepted profession and that every citizen of the Union has the right to seek employment, work, establish and provide services in each Member State. Article 47 stipulates that anyone whose EU-guaranteed rights and rights have been violated has the right to an effective remedy for court.
 Sweden, Discrimination Act (Diskrimineringslag [2008:567]), 5 June 2008, available at: www.riksdagen.se/sv/dokument-lagar/dokument/svensk-forfattningssamling/diskrimineringslag-2008567_sfs-2008-567
Key legal question raised by the Court:
The key legal question concerned if a company could be considered to be guilty of indirect discrimination if it claims to follow a strict interpretation of a collective bargaining agreement, which has a discriminatory effect.
Outcome of the case:
The Labour Court found that A. A. had been subjected to indirect discrimination on three occasions. She has been denied to participate in the recruitment process and thus missed the opportunity to be included in the company's rental pool and, consequently, from the possibility of getting fixed-time employment. However, the Labour Court noted that this discrimination was not caused by a discriminatory collective bargaining agreement. If the collective bargaining agreement was studied closely, it clearly stated that in the case of persons who receive sickness compensation that the employment requirement shall be assessed in relation to the overall working capacity, such that a person who has a 50 percent sick compensation must have another main employment that covers about 25 percent of full time. Thus the company's decision to not proceed with A.A. in a recruitment process, since she did not meet a minimum employment requirement of at least 50 percent of full time, was not a correct application of the collective bargaining agreement, but rather an application of a company-specific employment requirement, which was not agreed by the collective bargaining parties.
The Labour Court found that A.A. should be granted a total discrimination compensation of SEK 110,000 [€ 10,575] (SEK 70,000 [€ 6730] for the two occasions in 2015 and SEK 40,000 [€ 3845] for the occasion in 2017). Interest shall be paid for the SEK 70,000 from 22 July 2016 and for SEK 40,000 from 19 March 2018, until the full payment is made.
Charter of Fundamental rights
The Equality Ombudsman has invoked Articles 15 and 47 of the EU Charter of Fundamental Rights (EU Charter of Fundamental Rights) in support for an alignment or cancellation of the collective bargaining arrangements. Article 15 states inter alia: that everyone has the right to work and exercise a freely chosen or accepted profession and that every citizen of the Union has the right to seek employment, work, establish and provide services in each Member State. Article 47 follows inter alia: that anyone whose EU-guaranteed rights and rights have been violated has the right to an effective remedy for court.
According to the Labour Court, it does not follow from Articles 15 and 47 of the Charter of Fundamental Rights that discriminatory terms of an agreement should be adjusted or invalidated . However, the possibility of such an option follows from Council Directive 2000/78/EC establishing a general framework for equal treatment in working life and also by the Discrimination Act, as set out below.
According to the Labour Court, any independent basis for adjustment or invalidation based on the Charter cannot be found. Therefore, DO's claims on that ground cannot be sustained.
DO har åberopat artikel 15 och 47 i EU:s rättighetsstadga (Europeiska unionens stadga om de grundläggande rättigheterna) till stöd för att kollektivavtalsregleringen i fråga ska jämkas eller ogiltigförklaras. I artikel 15 anges bl.a. att var och en har rätt att arbeta och utöva ett fritt valt eller accepterat yrke samt att varje unionsmedborgare har rätt att söka arbete, arbeta, etablera sig samt tillhandahålla tjänster i varje medlemsstat. Av artikel 47 följer bl.a. att var och en vars unionsrättsligt garanterade fri- och rättigheter har kränkts har rätt till ett effektivt rättsmedel inför domstol.
Enligt Arbetsdomstolens mening följer inte av artikel 15 och 47 i rättighetsstadgan att diskriminerande avtalsvillkor ska jämkas eller ogiltigförklaras. Att en sådan möjlighet ska finnas följer dock av rådets direktiv 2000/78/EG om inrättandet av en allmän ram för likabehandling i arbetslivet och av diskrimineringslagen, vilket redovisas nedan.
Någon på rättighetsstadgan självständig grund för jämkning eller ogiltigförklaring finns alltså, enligt Arbetsdomstolens mening, inte. DO:s yrkanden härom kan alltså inte vinna bifall på den grunden.