Sweden: The Labour court rules on legal grounds for sex discrimination and disfavouring pursuant to the Discrimination Act and the Parental Leave Act after an internal recruitment

An employer informed their employees about a vacant position within the economic department of the company. Three of the employees, M.W., L.M. and M.J., reported their interest. Without conducting any interviews with either of the employees or obtaining any references, the employer hired the male candidate M.J. for the position. The trade union of M.W. and L.M. claimed that their two members had been discriminated on the basis of their sex pursuant to the Discrimination Act. The union also claimed that M.W. had been disfavoured due to her parental leave pursuant to the Parental Leave Act.

The Labour Court stated that the three employees were in a comparable situation. As M.J. was hired, the Labour Court assumed that the employer had assessed that he fulfilled the requirements on education, working experience and personal suitability. However, both M.W. and L.M had longer education within the relevant field compared to M.J. Further, as the employer had not explicitly claimed that the two women lacked personal suitability for the position, the Labour Court deemed that both of them fulfilled the personal suitability requirements.

Therefore, the Labour Court concluded that there were reasons to assume that M.W. and L.M. had been subjected to sex discrimination and, consequently, that the employer had to prove that the recruitment decision was not based on the employees’ sex. In this respect, the Labour Court noted that the team responsible for the recruitment, which included employees with first-hand knowledge of the applicants, considered that M.J. was better suited for the position as he was considered more analytical and proactive than M.W. and L.M. The Labour Court deemed these reasons to be objective and unrelated to the employees’ sex. The employer had therefore proven that there had been no discrimination or disfavouring pursuant to either the Discrimination Act or the Parental Leave Act.

Key Action Points for Human Resources and In-house Counsel

An overall assessment is required in each individual case to determine whether a person has been discriminated.