Sweden / Labour Court / A-163-2016

Country

Sweden

Title

Sweden / Labour Court / A-163-2016

View full Case

Year

2017

Decision/ruling/judgment date

Wednesday, December 20, 2017

Incident(s) concerned/related

Discrimination

Related Bias motivation

Religion

Groups affected

Muslims

Court/Body type

National Court

Court/Body

Labour Court (Arbetsdomstolen)

Key facts of the case

The court found it reasonable for an employer to ban the usage of disposable sleeves at his work place, even though the decision was considered to be discriminating women who cover themselves due to their religious belief. The judgment was based on a weighing of interest, where patient safety was considered to weigh heavier than freedom of discrimination. The plaintiff (A.N), represented by the Equality Ombudsman, is a Muslim dentist who wears hijab and covers her arms at work. In order to cover her arms she used disposable sleeves. This was originally sanctioned by a representative of the employer's local hygiene committee. In February 2016, the CEO decided to ban the usage of disposable sleeves. The decision was made to follow the regulations of the National Board of Health and Welfare (Socialstyrelsen), which stipulate that healthcare clothes shall be short sleeved, in all different kinds of healthcare. The regulation entered into force in January - a month before the CEO introduced the local ban. The main question of the case was whether the CEO's decision in fact amounted to indirect discrimination against A.N. The case was treated in the Labour Court.

Main reasoning/argumentation

The plaintifff (N.A) claimed that banning disposable sleeves is not a necessary measure to maintain patient safety, and that there is no scientific evidence that non-sterile disposable sleeves are a higher risk than the non-sterile disposable gloves that are used in dental care. Therefore, the plaintiff claimed that the ban was especially disadvantaging Muslim women who cover their body. The dentistry said they were aware of the fact that the ban risks to disadvantage some persons but says that their assessment was that the ban is necessary to be able to assure patient safety.

Is the case related to the application of the Framework Decision on Racism and Xenophobia, the Racial Equality Directive?

Key issues (concepts, interpretations) clarified by the case

The case clarifies that the protection of person's health and lives, (in this case patient safety) weighs heavier in such a conflict of interests; health concerns trumphs all other concerns. In the case in question, the health concerns and protection against diseases must be weighed against the ban of disposable sleeves and its possible effect on certain religious minorities. The ban of disposable sleeves when treating patients means that Muslim women who for religious reasons cover their arms in front of men, will be excluded from working as dentists in patient-oriented carework at the employer (Folktandvården) in question. The case clarifies that the protection of patient safety does indeed trumph other concerns, making the ban proportional.

Results (sanctions, outcome) and key consequences or implications of the case

The Court dismissed the Equality Ombudsman's (Diskrimineringsombudsmannen) action against the dentistry and decided that the Ombudsman should pay the dentistry's legal costs.

Key quotation in original language and its unofficial translation into English with reference details

Folktandvården har inte genom att besluta om förbud mot engångsärmar när skyddshandskar ska användas diskriminerat A.N., när hon var arbetstagare hos Folktandvården, eftersom beslutet haft ett berättigat syfte - att bibehålla patientsäkerheten - och Folktandvården visat att förbudet mot engångsärmar när skyddshandskar ska användas varit lämpligt och nödvändigt för att uppnå syftet med beslutet. Folktandvården är därför inte skyldig att betala A.N. diskrimineringsersättning. DO:s talan ska alltså avslås. (In deciding on a ban on disposable sleeves when protective gloves are to be used, Folktandvården has not discriminated against A.N. when she was an employee of Folktandvården, because the decision had a legitimate purpose – to maintain patient safety. Folktandvården has shown that the ban against disposable sleeves when protective gloves should be used is appropriate and necessary in order to achieve the purpose of the decision. Thus, Folktandvården is not obliged to pay A.N. discrimination compensation. The action of the Equality Ombudsman must therefore be rejected.)

DISCLAIMERThe information presented here is collected under contract by the FRA's research network FRANET. The information and views contained do not necessarily reflect the views or the official position of the FRA.