Employment law and pensions

Transcription

1 a newsletter from mannheimer swartling no. 26 march 2010 Employment law and pensions editor: EU-Advokat Kerstin Kamp-Wigforss legally responsible: Advokat Henric Diefke Göteborg/Stockholm / contact persons Advokat Henric Diefke Göteborg/Stockholm / Advokat Madeleine Rydberger Malmö Dr. Christian Bloth Rechtsanwalt, Frankfurt this newsletter is distributed solely for informational purposes and should not be regarded as legal advice. the newsletter may be quoted as long as the source is specified. This issue of the newsletter deals with three propositions for new legislation (leave of absence, discrimination and active measures for equal treatment) as well as some interesting decisions from the Labour Court. Mannheimer Swartling has, for example, acted for a company in a case in which the Labour Court determined whether an employment contract which was agreed after a notice of summary dismissal had been withdrawn was void under, inter alia, section 36 of the Contracts Act. Finally, the newsletter also examines the Labour Court s decision in the Laval case as well as the latest news about the proposed so-called Laval Act. Proposed new legislation submission to the council on legislation for comment on simplified leave of absence In a submission for comment to the Council on Legislation (Sw. Lagrådet), the Swedish government proposes, in order to simplify the legislation and reduce companies administrative costs, that existing leave of absence acts (except for the Vacation Act) be coordinated, simplified and clarified. The material contents of the rules will only be affected to a small extent by the proposed changes. The principal changes involve the following: The Act on Leave for Certain Association Assignments in School, etc. will be abolished. The Act on Leave and Compensation for Care of Close Relatives and the Act on Leave for Urgent Family Reasons will be combined in a new joint Act on Leave for Care of Close Relatives

2 and for Urgent Family Reasons. The Act on Employee s Right to Educational Leave and the Act on Immigrant s Right to Leave for Swedish Language Training will be combined in a new Educational Leave Act. The provisions of the Act on Leave for Pursuing Business Activities will be combined with the rules in the other leave of absence acts. The Act on the Right to Leave for Work Attempts due to Illness is to be kept with minor changes. The Parental Leave Act will be amended in substance as well as linguistically. The changes will involve the following: The employer s right to move requested full-time parental leave to another point of time under certain circumstances will be abolished. The option for the employer not to grant the part-time leave at the point of time requested by the employee where it causes obvious disruption to the business is nevertheless retained. In such a case, the employer must notify the employee at least one month prior to the leave and specify the reasons for his decision. The local trade union no longer has to be notified. The main principle that the employee has the right to cancel his leave at any time and return to work is qualified by a rule entitling the employer to postpone the return by one month if the leave was supposed to last for one month or more. That shall, however, not apply in cases of temporary parents allowance. Finally, the employee is always entitled to return to work at the point in time when the leave of absence was supposed to end. It is anticipated that the amendments will enter into force on 1 August contact person: jur kand kajsa nilsson knn@msa.se Proposal for amendment to the Discrimination Act The Swedish government further proposes in the above mentioned submission for comment of the Council on Legislation to amend the Discrimination Act. The amendment mainly concerns the case where an employer does not comply with a court judgment ruling that a discriminatory notice of termination or a discriminatory summary dismissal is invalid. In such circumstances, the employment relationship will then be considered terminated and the employer will be liable to pay compensation to the employee. The compensation shall be reasonable with regard to the employee s salary and the aggregate period of employment with the employer at the time of termination of the employment relationship. The compensation shall not be less than the amount stipulated in section 39 of the Employment Protection Act, i.e. between six and 32 months salary. The reason for the proposed change is that there is, at present, no express provision in the Discrimination Act prescribing that an employer shall be liable to pay compensation to the employee where the employer has not complied with such a court judgment declaring that a discriminatory notice of termination or a discriminatory summary dismissal is invalid. Committee proposal on new rules regarding active measures for equal treatment A governmental committee has presented its report Active measures in order to promote equal rights and opportunities a systematic goal-oriented work in three areas of society (SOU 2010:7). The committee notices that the Equal Opportunities Act has only had a minimal effect in influencing and speeding up the development towards equality in working life. Therefore, it recommends that the Discrimination Act should require employers, who had at least 25 employees at the start of the latest calendar year, to make their own inventory and analysis of the obstacles to promotion of equal rights and opportunities, and to continually assess such inventory. This work would apply to all grounds of discrimination contained in the Discrimination Act (sex, transgender identity or expression, ethnicity, religion or other belief, disability, sexual orientation and age) and within all areas of working life, education and defence education. Every three years the concerned employers would draw up a programme with a report on which measures they intended to implement during that period. The programme would be reviewed annually and would contain employment conditions, recruitment and salaries as well as a separate equal pay survey with a follow-up based on the grounds of sex discrimination. Active measures are described as measures that are taken in order to prevent and counteract discrimination as well as to promote equal rights and opportunities. The measures are intended to have a productive and encouraging effect and thereby increase efforts to counteract discrimination. They are forward-looking and of general or collective nature. Implementation of such active measures will be a working process, i.e. from definition of the problem via its description, activities and change of routines to follow-ups and assessments. Supervision by the Equality Ombudsman will focus on the systematic goal-oriented work, i.e. on the system of the promotion work of equality itself. The Equality Ombudsman will communicate, support, facilitate and improve that work as well as give advice and guidance to employers. The committee further suggests that the terms disability and transgender identity and expression as grounds on which discrimination would be established be changed to functional impairment and gender identity and expression respectively in order to make them more in line with today s language. contact person: eu-advokat kerstin kamp-wigforss kka@msa.se The amendment is anticipated to enter into force on 1 July contact person: jur kand kajsa nilsson knn@msa.se

3 News from the courts question as to whether grounds for dismissal or termination of a therapist have existed An employer had summarily dismissed an employee who worked as a therapist for the visually impaired. The employer had based the dismissal on allegations which imply that the employee had, among other things, on several occasions threatened and violated a female patient, that he had systematically during working hours used the employer s computer equipment and address as well as contact information for private purposes, that he had registered time not corresponding to the actual working hours and that he had threatened his manager on two occasions. The Swedish Teachers Union (the Union ) brought an action against the employer and claimed that the Labour Court declare the summary dismissal void and order the employer to pay general damages to the employee on the grounds that there was not just cause for termination. Since the employee, as a consequence of the summary dismissal and the employer s behaviour, had suffered a serious and long lasting psychological illness, the Union also claimed economic damages corresponding to the difference between the non-paid salary and what the employee had received as sick pay. The Labour Court annulled the summary dismissal because the employer had not been able to prove its allegations regarding violation and threats of the female patient or the threatening behaviour against the manager, which, in the Labour Court s opinion, were the only grounds which would have justified a summary dismissal. With regard to the employee s use of the employer s computer, address and contact information for private purposes, the Labour Court found that this negligent behaviour deserved criticism. However, as the employer had not made the employee aware of his negligent behaviour and the fact that such behaviour could lead to termination of employment, the Labour Court did not find a just cause for termination could be established. As regards the Union s claim for economic damages, the Labour Court firstly found that an employee who is on sick leave during the period when he should have received his salary from the employer but did not do so, for example, because of a dismissal without just cause, is not, in principle, entitled to economic damages for that period. This is because the employee is not deemed to be at the employer s disposal during the sick leave period. However, circumstances in connection with a termination of employment and the way such termination is executed, can cause an employer to become liable for the employee s economic loss caused by the sick leave. Since no such circumstances proving an adequate connection between the employer s behaviour and the employee s incapacity to work had emerged in the case, the Labour Court found that the employer could not be held liable for the employee s sick leave and the economic loss connected therewith. (Labour Court judgment 2010, number 11) contact person: jur kand bita pourmotamed bpo@msa.se question as to whether an employment agreement was invalid under the provisions of, inter alia, section 36 contracts act An employee had been given notice of summary dismissal. Afterwards the notice was withdrawn and the employer and employee entered into an agreement with unchanged terms and conditions but which entailed the employee being given new tasks which were not part of the obligation to work and which should be carried out at a sub-supplier to the employer.

4 Later, the employee revoked her acceptance and asserted that the agreement should be disregarded under sections 29, 30, 33 or 36 of the Contracts Act. Furthermore, the employee was of the opinion that the agreement should be declared void under the so-called assumption doctrine (Sw. förutsättningsläran). The employee also alleged that the employer s behaviour was comparable to a summary dismissal or a notice of termination. The employer was of the opinion that the parties had entered into a valid agreement and that the employee should perform her tasks in accordance with the agreement. The Labour Court found that the agreement was based on a voluntary arrangement between the parties and that the terms of the agreement entailing that the employee should change from performing administrative office work to performing assembly work could not be considered unreasonable under general contractual principles. Further, the Labour Court was of the opinion that the employee could not be considered to be in an inferior position at the conclusion of the agreement as she was assisted by her trade union representative and was given plenty of time to consider the offer. Consequently, the Labour Court did not see any circumstances that would cause the agreement to be declared void. (Labour Court judgment 2010, number 9) contact person: jur kand helena sjöholm hct@msa.se question as to whether employer s acting entailed a violation of the collective bargaining agreement and if there was just cause for dismissal A company wished to deviate from its present premium salary system and therefore offered the employees concerned a salary system which entailed a fixed salary plus a premium compensation but which resulted in reductions in employees salaries. The employees refused to accept the change which they claimed was in violation of the collective bargaining agreement. A little under a month later, the company made the employees redundant. The employees were of the opinion that the company had violated the collective bargaining agreement, partly by trying to change the salary form without a local agreement what in its turn would result in a reduction of the collective salary and partly by making the employees redundant when they did not accept the offer. The employer asserted that a local agreement was not required to change the premium salary system into a fixed salary and a premium compensation and that there was no protection against salary reductions in the collective bargaining agreement. Further, the employer alleged that there was a shortage of work after the employees decline of the employment terms that were offered and consequently, there was just cause for the termination of employment. The Labour Court held that a premium salary, as well as a fixed salary plus a premium compensation, was regulated by the collective bargaining agreement which also included the option of making a local agreement on another salary system. In the present case, however, the Labour Court found that the issue was to change from one salary form in the agreement to another and that such a change was not subject to a local agreement. The Labour Court found that it was established that the company wanted to implement the change of the agreement in order to reduce its salary costs, which in its turn would have resulted in the earnings of the employees concerned decreasing. In the opinion of the Labour Court neither the collective bargaining agreement nor the salary agreement contained any protection of the employees salaries. As the offer of the changed employment terms was not considered to be in violation of the collective bargaining agreement, the Labour Court found there was just cause for termination of the employees. (Labour Court judgment 2010, number 6) contact person: advokat yvonne ivarsson yiv@msa.se Other the latest about laval As previously reported in Newsletter no. 20/2008, the European Court of Justice ( ECJ ) held in its preliminary ruling on the so-called Laval case in December 2007 that the Swedish lex Britannia principle infringes EU law (article 49 of the Treaty of European Union (free movement of services)) and that the industrial action against the Latvian company Laval initiated by the Swedish Building and Public Works Trade Union (Sw: Svenska Byggnadsarbetareförbundet), its local trade union and the Swedish Electricians Trade Union (Sw: Svenska Elektrikerförbundet) was accordingly unlawful. The Swedish Labour Court finally decided the Laval case on 2 December 2009 and held that the trade unions must pay damages amounting to SEK 550,000 for the unlawful industrial action and approximately SEK 2,000,000 in legal costs to Laval. The trade unions were held liable to pay damages because their industrial actions infringed EU law. The Labour Court applied the damage provisions of the Co-Determination at Work Act analogously to the violation of article 49 EU-Treaty which according to the Labour Court had to be regarded as having horizontal direct effect between the trade unions and Laval in this situation. Laval s claim for pecuniary damages was, however, denied because the company was not able to show how great the damage was. Concerning general damages, the Labour Court established that the industrial actions constituted clear violations of EU law, lasted a relatively long time and were not concluded before the contract assignment was terminated and the posted workers had left the country. The Labour Court also emphasised that high demands must be made on the labour market s organisations as far as an investigation as to whether a planned industrial action interferes with the duty of peace is concerned. Further, as regards the damage assessment, no importance could be attached to the injunctive relief that had been granted by the Labour Court in the lawsuit (implying that the industrial actions could continue). (Labour Court judgment 2009 number 89) As mentioned in our last Newsletter (no 25/2009), the Swedish government made the decision on a legislative proposal (2009/10:48) concerning measures in response to the ECJ judgment in the Laval case which include amendments to the Posting of Workers Act and the Co-Determination at Work Act (so-called Laval Act ).

5 The opposition parties had requested that the Laval proposal be declared dormant for one year in connection with the Parliament s reading because it infringes the constitutional freedom of association. For this reason the Parliament s Labour Market Committee (Sw. Arbetsmarknadsutskottet) decided to provide the Constitution Committee (Sw. Konstitutionsutskottet) with an opportunity to express an opinion. The Constitution Committee itself requested the Council on Legislation s point of view on the proposition. The Council on Legislation refused, however, to comment because the Constitution Committee s proposal did not refer to the review of a legislative proposal but concerned the obtaining of a statement about the applicability of an article in the constitution. Besides, the legislative proposal had already been reviewed by the Constitution Committee. The Council on Legislation nevertheless declared that the proposed Laval Act does not infringe the freedom of association because the constitutional right to industrial action is not regulated within freedom of association. The Constitution Committee accordingly came to the conclusion that the option to declare a legislation proposal dormant is not applicable to the Laval Act. The Labour Market Committee amended its report on 18 February. The Swedish Parliament was to vote on the government s proposal on the Laval Act on 10 March In connection therewith, the opposition parties requested again that the proposal be declared dormant. At the time of writing the question lies with the Constitution Committee which is expected to comment in due course. contact person: eu-advokat kerstin kamp-wigforss kka@msa.se Mannheimer Swartling is the leading commercial law firm in the Nordic region with an international practice and assignments all over the world. By combining the highest legal competence with industry know-how, we offer our clients professional legal advice with added value. Our insurance practitioners are widely recognized for their high level of expertise and extensive experience. Our work covers the full range of insurance products and regularly assist clients with the drafting of terms and other documentation. We also assist with claim adjustment matters and with the interpretation of terms in different situations. For more information about our experience in insurance, please contact us or visit