The difficulty of winning cases before Sweden’s Labour Court (Arbetsdomstolen) has prompted the ombudsman’s general counsel, Pia Engström Lindgren, to question whether the court is accurately interpreting current legislation governing the burden of proof required in discrimination cases.
“I’m going to undertake a more detailed analysis of these rulings,” she told the magazine Du & Jobbet (‘You and Work’), which carried out a review of discrimination cases heard by the Labour Court since 2003.
Sweden’s DO, which was recently merged with other ombudsman offices into a single agency, helps parties who allege they’ve suffered from ethnic discrimination fight their cases in court.
The agency has brought 12 cases to trial before the Labour Court in the last five years, losing every case, including three which were tried in early 2009 following the reorganization of the ombudsman agencies.
But it’s not just the DO which has trouble proving discrimination in front of the Labour Court.
Of the 15 claims filed by individuals since 2003, 12 of which were filed by the same person, not a single judgment found in favour of the accuser.
In addition, unions have lost four discrimination cases, with two others being settled two before going to trial.
According to current legal standards, based on a European Union directive, if someone who believes they have suffered from discrimination or harassment can present credible evidence to support their case, then it is up to employers to prove that discrimination did not in fact occur or that they were unaware of any alleged harassment.
Engström Lindgren theorized that her agency’s abysmal record at winning discrimination cases may have something to do with the Labour Court setting the burden of proof being set too high.
While the EU directive states that it shouldn’t be too difficult to show that discrimination has occurred, the Swedish court has generally accepted employer arguments showing that discrimination hasn’t taken place.
“The idea behind the directive is to make it somewhat easier to show that discrimination has taken place by making it tangible,” she said.
“I wish the Labour Court would at some point ask the European Court of Justice for an interpretation of the purpose of the burden of proof directive.”
The most common cases of ethnic discrimination heard by the Labour Court, 10 cases in total, involve people who allege that they were denied employment because of their ethnicity.
In its review, the magazine highlights several cases of alleged discrimination in which the aggrieved party lost before the Labour Court, despite evidence to back up the complainant’s case.
In one case from 2004, a man claimed he’d been subjected racial slurs such as “blackey” at his workplace. The manager of the man’s division, as well as his colleagues all admitted to the accusations, but the court accepted the argument that the term was simply internal jargon and ruled in favour of the employer.
In another case from 2005, a man was told he didn’t receive a job at a construction site because he didn’t speak Swedish well enough. The man called several witnesses from other work sites, all of whom confirmed that he spoke the language well.
Even the court agreed during the trial that the man had a satisfactory command of Swedish. But, the court ruled, there was no evidence that his Swedish skills were equally strong when he was interviewed for the job three years earlier.
Other cases reviewed by Du & Jobbet involved job seekers who were told that potential employers never received their faxed job applications, as well as instances in which applications were mishandled due to administrative mix ups.
In each case, there was no way to disprove the employer’s contention.
Nevertheless, Engström Lindgren defended her agency’s decision to try the cases, despite not winning a single one.
“There is every reason to try the cases we’ve taken up,” she told Du & Jobbet.
“Many of the cases involve employment situations and that suggests there is structural discrimination in the labour market.”