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By Marcus Hoy
March 17—An appeals court ruling clearing two managers of culpability in an employee's suicide illustrates the difficulty of determining when an employer's neglect of the duty of care required under Sweden's Work Environment Act (1977:1160) triggers criminal liability, legal adviser Ingrid Benzinger of Bird & Bird tells Bloomberg BNA.
The late February Sundsvall Court of Appeal ruling reversed a 2014 Ostersund District Court decision that found two managers responsible for the employee's death. According to the lower court, because the managers “willfully neglected” the wellbeing of the employee, they were guilty of involuntary manslaughter in his death.
The 53-year-old employee was a staff member of a state-run medical facility charged with treating substance abusers and had 30 years' experience in social and family care. The problems began in 2009 when a new administrator was employed as the man's immediate supervisor. Citing a clash of personalities and differing approaches to work issues, the man informed his head of unit and the regional head of social services that he felt bullied and harassed and requested transfer to a new assignment.
Rather than reassignment, the employee's complaints resulted in his referral to a doctor and a psychologist, additional criticism of his performance from his immediate supervisor, and a written warning and threat of termination.
While the man's immediate supervisor was not charged with any legal wrongdoing, state prosecutors charged that the two managers who handled his complaint had neglected their duty of care under the Work Environment Act and that their actions exacerbated the worker's suffering and strongly contributed to his decision to end his life.
In February 2014, the District Court agreed that the managers had neglected their statutory duty of care and sentenced them to fines and suspended prison sentences. The men were also suspended from their jobs. On appeal, the managers argued that they were unaware of how serious the problem had become and that it was not possible to identify all the factors that contributed to the man's suicide.
Although it agreed that serious shortcomings were present in the managers' handling of the case, the Appeal Court found no reasonable grounds on which the managers could have foreseen the results of their actions. While negligence could be demonstrated, the court found, the extent of the managers' negligence was not such that it should be punished by law.
“The main point of law under debate was whether criminal liability should be imposed for a failure to meet the required level of care under the Work Environment Act,” Benzinger told Bloomberg BNA. “While the scope of an employer's duty of care to employees was also discussed, especially with regard to the psychosocial work environment, this was not the main issue.”
“In this case, the new ruling should not be said to establish a precedent that limits employer responsibilities under the Work Environment Act,” Benzinger added. “It is clear from the verdict that employers still have an extensive duty of care and that the management in this particular case had failed to adequately observe this duty. However, the court also found that in this particular case, the failure was not sufficient to impose criminal liability for involuntarily causing another's death.”
“The ruling should be seen as an illustration of the difficulties connected with imposing criminal liability for deaths caused by shortcomings in the work environment, especially when the psychosocial work environment is at issue,” Benzinger continued. “The court acknowledged that in this particular case, resolving the situation for the employee concerned would have been difficult. Both the actions and wishes of the employee himself and the fact that applicable work environment regulations such as the regulation on victimization were unclear contributed to this difficulty. Unfortunately, this is often the case with problems connected to the psychosocial work environment.”
“That the courts observe caution when imposing criminal liability is nothing new,” Benzinger concluded. “However, it will be interesting to see if the prosecutor appeals to the Supreme Court, which might view the case differently and possibly establish a new precedent if it were to impose criminal liability.”
Christer B. Jarlas, senior public prosecutor at Sweden's National Environmental Crimes Unit, told Bloomberg BNA in a March 5 statement that any appeal would initially need to be approved by the Malmo-based Prosecution Development Center, a body responsible for health and safety legal violations, before being referred by the state prosecutor.
“At the heart of this case is the managerial responsibility for the psychosocial workplace environment and how far this responsibility goes when an employee starts to feel unwell,” Jarlas said. “The Work Environment Act imposes stringent requirements on employers when it comes to preventing work environment-related injuries or illness. The Court of Appeal said that the managers can breach these responsibilities in several points without their negligence being punishable. We believe this is an error by the court.”
“If the Appeal Court's judgment becomes final and is not changed by the Supreme Court, it will be clear that the law is insufficient,” Jarlas said. “We believe that the District Court's ruling reflects what we believe to be applicable Swedish law in a much clearer way.”
Andreas Victor, a lawyer who represented the defense in both cases, told Bloomberg BNA that he believed that the judgment was sound and leave to appeal further was unlikely to be granted.
“I think it was reasonable to find that the managers' negligence was not so severe as to be punishable as manslaughter,” Victor said. “My client has never argued that he did everything right but that he took what he thought were correct actions, such as referring the employee to the occupational health services.”
“I think the judgment is significant in the sense that employers now might be more active in following up and trying to resolve such problems,” Victor added. “I think, for example, that so-called bullying investigations are more likely be performed externally in the future.”
“Since the examination of this case was extensive and included a good deal of evidence, I do not think the Supreme Court will examine it further,” Victor concluded. “The legislation has not been weakened but the case will certainly be discussed extensively and promote future work in this field.”
To contact the reporter on this story: Marcus Hoy in Copenhagen at email@example.com
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For more information on Swedish HR law and regulation, see the Sweden primer.
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