Sweden: Anti-Discrimination Amendments Increase Companies' Obligations

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By Marcus Hoy

Amendments to Sweden's Discrimination Act (2008:567) require employers to take “active measures” to combat discrimination in all its official forms. In effect since Jan. 1, the new rules increase the categories of discrimination employers must avoid and require them to document all anti-discrimination measures taken. The amendment also requires companies and other organizations to conduct annual salary surveys.

Previously, companies were required to implement measures to prevent workplace discrimination on the grounds of sex, ethnicity and religion or other beliefs. In addition to these categories, the amendment requires companies to combat discrimination on the grounds of transgender identity or expression, disability and sexual orientation.

Under the new rules, companies with 25 employees or more must work “systematically” to combat all these forms of discrimination and document this work on an annual basis. Salary surveys, which were previously required to be carried out every three years, must now be conducted every year by companies with at least 25 employees.

Internal Investigations

Companies are also required to carry out internal investigations to assess the risk of discrimination or harassment and to document their findings. “Reasonable” anti-discrimination measures, such as adjusting managerial and organizational structures to deter discrimination, must be applied where necessary. Companies found to be in breach of the new rules can face fines calculated on the basis of their economic situation.

Under the new rules, affected organizations are required to:

  •   gauge the risk of discrimination or reprisals or any other obstacles to individuals' equal rights and opportunities,
  •   identify the causes of such risks and obstacles,
  •   take “reasonable measures” to prevent discrimination and promote equality and
  •  monitor and evaluate the measures taken.

Bjorn Rustare, employment counsel at the law firm Roschier, told Bloomberg BNA in a March 2 statement that the so-called “active measures” are required to be implemented “systematically,” which implies a “continuous process with recurring activities.”

“When it comes to active measures, these are fairly extensive changes,” Rustare said “Previously the rules didn't apply to all forms of discrimination. Since a ban on discrimination on all other official grounds has been in force for many years, a broadening of the workplace rules was expected. Many employers have already applied measures on several of these other grounds on a voluntary basis or in order to comply with trade union demands.”

“Before Jan. 1, an employer with 25 or more employees was required to draw up a gender equality plan and an action plan for equal pay every third year,” Rustare said. “These two plans have now been replaced by a requirement that systematic work be documented in its entirety every year. The documentation does not need to be included in any plan but should rather be used to support this work. Employers in Sweden should be familiar with this approach as it is applied to other work environment issues.”

‘Active Measures'

“The rules on salary surveys are now also a part of the requirements on active measures,” Rustare said. “Instead of conducting a salary survey every third year, salary surveys are now to be conducted every year. Historically, annual salary surveys were the norm in Sweden. It was only in 2008 that the rules were changed to require surveys every third year. This amendment basically sets the clock back to the previous standard. Some large employers already conduct salary surveys every year, either on a voluntarily basis or in order to meet trade union requirements.”

In a March 2 statement, Dasha Gafur, an associate at the Bird and Bird legal firm, told Bloomberg BNA that the changes had been criticized during the consultation process as being costly and burdensome.

“So far, we have not yet received any feedback on how the changes have been dealt with by employers,” Gafur said “Concerns were expressed that the new rules, particularly in relation to documentation and salary surveys, would impose a costly administrative burden on employers and others. These were addressed in the preparatory work. The response was that the documentation requirements were necessary in order to review whether the required procedures were being followed. Furthermore, the preparatory work stated that the advantages of introducing annual salary surveys would outweigh any potential adverse effects related to costs and bureaucracy.”

“Employers that are subject to the new regime and do not comply with the required procedures may face fines,” Gafur added. “The decision on whether to prosecute a company will be taken by the Equality Ombudsman.”

“The changes entered into force in full on Jan. 1 and no grace period has been stipulated,” Rustare said “However, we are unlikely to see any cases brought by the Equality Ombudsman related to the systematic work requirement before the end of 2017.”

To contact the reporter on this story: Marcus Hoy in Copenhagen at correspondents@bna.com

To contact the editor responsible for this story: Rick Vollmar at rvollmar@bna.com

For More Information

The Discrimination Act is available in Swedish here, an English-language analysis by Bird and Bird here.

For more information on Swedish HR law and regulation, see the Sweden primer.

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