Sweden: A public employer’s decision to issue disciplinary action in the form of a written warning following the publishing of a political statement by an employed teacher was deemed compatible with the applicable collective agreement and Swedish law

Authors: Freddie Hassellöv

A teacher employed at a public school published information containing personal political statements for students on the school’s digital platform. The statement indicated that those who hold the value of equality of all are unlikely to vote for the Sweden Democrats, a Swedish political party. Pursuant to the applicable collective agreement, the employer was entitled to decide on disciplinary action in the form of a written warning if the employee was guilty of fault or negligence at work. The employer chose to issue such a written warning to the teacher following the publication of the statement. The trade union of which the teacher was a member argued that the employee had not been guilty of fault or negligence as the statement could not be considered to conflict with the teacher’s legal obligation to provide education in a factual and versatile manner. According to the trade union, the teacher had also used his constitutional freedom of expression when publishing the statement. The union therefore argued that the employer had breached the collective agreement by imposing disciplinary action. The main question in the case was whether the employer’s decision on disciplinary action constituted a breach of the collective agreement.

The Labour Court found that the teacher, through his statement, could not be considered to have complied with his obligation to provide an objective and versatile education. The court also held that the employee’s actions conflicted with the constitutional principle of objectivity, which means that courts, administrative authorities, and others who perform public administrative tasks must observe objectivity and impartiality. According to the court, the teacher had not been objective and impartial when acting in his professional role as a teacher. The Labour Court also had to consider whether the written warning constituted an impermissible restriction on the employee’s freedom of expression, which includes the freedom to express thoughts and opinions. Public employees are also entitled to express personal opinions. However, freedom of expression is not absolute. A public employee expressing an opinion must make it clear that it is a personal one. According to the Labour Court, the teacher’s statement could not be interpreted as the teacher merely expressing a personal opinion.

To summarise, the Court found that the employee’s statement conflicted with the requirement of objective education and therefore constituted fault or negligence at work. The employer had therefore not breached the collective agreement or Swedish law by deciding on a disciplinary action against the employee.

Key Action Points for Human Resources and In-house Counsel

The freedom of expression of public employees is not unrestricted. Freedom of expression may be limited by employers’ requirements that employees perform their work duties in a regulated manner and authorities’ requirements for objectivity.