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Global employment briefing: Sweden, January 2018

  • Sweden
  • Employment law

31-01-2018

Damages for industrial action violating the ECHR

A Swedish district court recently awarded a company damages after it found industrial action against it, in the form of a blockade, tortious and in violation of the European Convention on Human Rights (“ECHR”).

A trade union had tried to persuade the company to enter into a collective bargaining agreement by joining an employer’s association or by signing a local collective agreement. The company did not want to join the employer’s association because of its political associations, nor did it want to enter into the local agreement as it would require the company to pay so-called monitoring fees. Under a collective agreement, monitoring fees require an employer to deduct a sum of money, the monitoring fee, from all employees’ wages and pay the sum to the trade union. The fees finance the trade union’s activities.

In response, the trade union initiated industrial action by means of a blockade. While the blockade was in effect, the European Court of Human Rigths ruled that the local collective agreement’s system of collecting a monitoring fee contravened the unorganised employees’ (those employees who were not trade union members) right to property (Article 1 Protocol 1 of the Convention). It was thus removed from the agreement shortly afterwards.

The district court argued that the blockade had been in violation of the freedom of association (Article 11 – here, the freedom to not be part of an association) under the ECHR since the company had been forced to choose between joining an association, suffer economic losses or being exposed to industrial action. The trade union had thereby forfeited its otherwise constitutionally protected right to take industrial action.

After an overall proportionality assessment, the court found that the industrial action had been tortious, at least after the ruling by the European Court. The employer was thus awarded with damages for economic losses caused by the blockade after the date of the ruling.

Non-compete clause declared invalid

The Swedish Labour Court found a non-compete clause in an employment agreement to be unreasonable and consequently declared it invalid.

The Swedish Contracts Act indicates that a non-compete clause is not valid to the extent the commitment extends beyond what can be considered reasonable. According to the clause in question, the employee undertook, without any additional compensation, to not conduct or commence a competing business for a period of 24 months after the employment had been terminated.

The court held that the period of 24 months did not in itself make the clause unreasonable. The employee had, however, worked in the industry for five years and was 60 years old - which is why the clause entailed a not insignificant limitation of his ability to pursue professional activities. Considering all relevant circumstances, the court found the clause unreasonable and thereby lifted the employee’s non-compete undertaking.

Dentist’s policy on using sleeves not religious discrimination

A dentist used disposable sleeves when working with patients for religious reasons. The employer then introduced a policy prohibiting the use of any kind of sleeves in accordance with new regulations by the Swedish Health and Human Services Department. When encouraged to obey by the policy, the employee resigned.

The Swedish Labour Court has now ruled that the policy does not constitute indirect religious discrimination since it was appropriate and necessary to preserve a sterile work environment so as to ensure patient safety.

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