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The law (1999:132) on a ban against discrimination against disabled persons in working life
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Issued: 1999-03-11
Enters into effect: 990501
The purpose of the law
1 § The purpose of this law is to counteract discrimination against disabled person in working life.
2 § The term disability means a permanent physical or mental limitation related to a person’s ability to function as a result of an injury or illness that existed at birth or has arisen thereafter or can be expected to arise.
The ban against discrimination
Direct discrimination
3 § An employer may not unfairly treat a job applicant or an employee with a disability by treating him or her less favourably than the employer treats or would have treated persons without a disability in a comparable situation, unless the employer shows that the less favourable treatment has no connection with the disability.
The ban does not apply if the treatment is justified with regard to an idealistic or other special interest which clearly is more important than the interest in preventing discrimination in working life on the basis of disability.
Indirect discrimination
4 § An employer may not treat a job applicant or employee with a specific disability less favourably by using a rule, requirement or procedure that seems neutral but which in practice is particularly disfavourable to persons with a particular disability. This does not apply if the purpose of the rule, requirement or procedure can be motivated by rational reasons and the measure is suitable and necessary for achieving the purpose at issue.
When the bans apply
5 § The bans against discrimination in §§ 3 and 4 apply when the employer
1. makes a decision to employ, decides to take in a job applicant for an employment interview or undertakes other measures during the employment process,
2. makes a decision concerning promotion or chooses an employee for an education that will lead to promotion,
3. applies salary or other employment conditions,
4. leads or distributes work or
5. dismisses, terminates, lays off or undertakes other intrusive measures against an employee.
Support and adaptation measures
6 § The ban in 3 § applies even when the employer at the time of employment, promotion or training for promotion, through the implementation of support and adaptation measures can create a situation for a person with a disability that is similar to that for person without such a disability and it can reasonably be required that the employer undertake such measures.
Information about qualifications
7 § A job applicant who has not been employed as well as an employee who has not been promoted or chosen for an education leading to promotion has a right to request and receive written information from the employer about the education, work experience and other qualifications of the person who got the job or the education.
Ban against retaliatory actions
8 § An employer may not subject an employee to retaliatory actions due to the employee’s submission of a complaint against the employer for discrimination in accordance with this law.
The duty to investigate and undertake measures against harassment
9 § An employer who receives knowledge that an employee considers herself or himself to have been subjected to harassment on the basis of her or his disability by another employee shall investigate the circumstances concerning the reported harassment and where needed undertake the measures that reasonably can be considered necessary to prevent harassment in the future.
The term harassment on the basis of disability refers to the type of behaviour in working life which violates an employee’s integrity and has a connection to the employee’s disability.
Sanctions
Voidability of contracts
10 § A contract is void to the extent that it requires or allows any form of discrimination that is forbidden according to this law.
11 § If an employee is discriminated against in a manner that is forbidden according to this law through a term in a contract with the employer, the term shall be modified or declared void if the employee requests it. If the term is of such importance in relation to the contract that it cannot reasonably required that the contract shall otherwise remain in effect, the contract can be modified even in other respects or be declared void in its entirety.
If an employee is discriminated against in any manner that is forbidden according to this law through the employer terminating a contract or undertaking any other similar legal action, the legal action shall be declared to be void if the employee requests it.
The first and second paragraphs do not apply when § 10 is applicable.
Damages
12 § If a job applicant or an employee is discriminated against through an employer’s violation of the bans in § 3, § 4 or § 5, points 1 or 2, or § 6 the employer shall pay damages to the person discriminated against for the violation of integrity that the discrimination involves.
13 § If an employee is discriminated against through an employer’s violation of the bans in § 3, § 4 or § 5, points 3-5, the employer shall pay damages to the employee for the loss that arises and for the violation of integrity that the discrimination involves.
14 § If an employee is subjected to the retaliatory actions covered by § 8, the employer shall pay damages to the employee for the loss that arises and for the violation of integrity that the retaliatory action involves.
15 § If an employer does not fulfil his or her duties according to § 9, the employer shall pay damages to the employee for the violation of integrity that the failure to act involves.
16 § If it is reasonable the damages assessed according to §§ 12-15 can be reduced or be completely removed.
Supervision
The Disability Ombudsman
17 § The Disability Ombudsman shall ensure that this law is followed.
The Ombudsman shall in the first instance try to convince employers to voluntarily follow the rules set out in this law.
The duty to provide information
18 § Upon the request of the Disability Ombudsman an employer has the duty to provide the relevant information concerning the conditions that prevail in the employer’s activities that can be of importance in relation to the Ombudsman’s supervisory tasks according to § 17.
An employer is also under a duty to provide information when the Disability Ombudsman provides assistance to an individual job applicant or an employee concerning a request according to § 7.
Employers are not to be unnecessarily burdened by this duty to provide information. If there are special reasons the employer is not under a duty to provide information.
The issuance of an order under penalty of a civil fine
19 § If an employer does not follow a request according to § 18, the Disability Ombudsman can issue an order under penalty of a civil fine according to which the employer is required to fulfil her or his duty.
Appeals etc
20 § A decision by the Disability Ombudsman concerning an order under penalty of a civil fine may be appealed to the Board against discrimination. The Board’s decisions cannot be appealed.
A lawsuit concerning the imposition of a fine that has been ordered according to this law is to be brought before the district court by the Ombudsman.
Procedure before the Board against discrimination
21 § The Board against discrimination shall ensure that the cases submitted to it are investigated to the extent necessary in relation to the individual case.
When necessary the Board shall allow the investigation to be supplemented with additional information. Requests for superfluous investigations may be rejected.
22 § Cases concerning an order under penalty of a civil fine are to be decided after an oral hearing, unless the Board concludes that such a hearing is unnecessary.
23 § The Disability Ombudsman and the employer shall be called to a hearing according to § 22.
The Board may, under penalty of a civil fine, order the employer or the employer’s representative to appear in person.
If necessary for the investigation, the Board may also call others to the hearing.
The trial
The applicable rules
24 § Cases concerning the application of §§ 3-6 and §§ 8-16 shall be dealt with according to the law (1974:371) on trials in labour disputes.
In this connection a job applicant shall be treated as an employee and the prospective employer shall be treated as an employer.
The second paragraph also applies when the rules concerning dispute hearings in the law (1976:580) on co-determination at work are applied in a dispute according to §§ 3-6 and §§ 8-16.
The right to bring a lawsuit
25 § In a dispute according to § 24 the Disability Ombudsman may bring a lawsuit on behalf of an individual employee or a job applicant, if the individual agrees and the Ombudsman finds that a judgment in the dispute would be of importance for the application of the law or there are otherwise special reasons for bringing the case. If the Ombudsman finds it suitable the Ombudsman may in the same lawsuit also present other claims as the representative of the individual.
The Ombudsman’s decisions on issues involving the first paragraph cannot be appealed.
The Ombudsman’s lawsuits according to the first paragraph are to be brought before the Labour Court.
26 § When a union has the right to bring a lawsuit on behalf of an individual according to Chapter 4, § 5, of the law (1974:371) on trials in labour disputes, the Disability Ombudsman may bring a lawsuit only if the union refrains from doing so.
That which is prescribed in the above-mentioned law concerning an individual’s position in the trial shall also be applied when the Ombudsman brings a lawsuit.
27 § A lawsuit for damages according to § 12 due to a decision to employ or not employ that has been made by a public employer may not be examined until the employment decision has become legally binding.
Statute of limitations etc.
28 § If a person brings a lawsuit due to a notice of dismissal or firing then § 34, second and third paragraphs, § 35, second and third paragraphs, § 37, § 38, second paragraph second sentence, §§ 39-42 and § 43, first paragraph second sentence and the second paragraph, of the law (1982:80) on employment security shall be applied.
29 § In regard to a situation where some other legal issue is presented than those specified in § 28, §§ 64-66 and § 68 of the law (1976:580) on co-determination at work shall be applied with the difference that the time limit indicated in § 66, first paragraph first sentence, shall be two months.
30 § In regards to a lawsuit for damages as the result of a decision to employ or not employ issued by a public employer, the time limits according to § 28 shall be calculated from the day that the employment decision became legally binding.
31 § A lawsuit that is brought by the Disability Ombudsman is to be treated as if the lawsuit had been brought by the individual employee or job applicant himself.
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This law enters into effect on 1 May 1999.