Equal Opportunities Ombudsman clashes with Labour Court

In September 2001, the Swedish Equal Opportunities Ombudsman lost the latest in a series of gender wage discrimination cases in the Labour Court. Shortly afterwards, the Ombudsman withdrew a similar case, announcing that the financial stakes were too high to risk losing again. The Ombudsman also stated that he would prefer to take wage discrimination cases to the public courts instead.

I september 2001 förlorade Jämställdhetsombudsmannen ytterligare ett mål om lönediskriminering. En kort tid efter drog han tillbaka ett liknande fall i Arbetsdomstolen. Det lönade sig inte att driva det av processekonomiska skäl av risk att troligen förlora igen, sade han. Jämo har också uttalat att han helst vill föra talan om lönediskrimination i allmän domstol.

On 12 September 2001, the Swedish Labour Court (Arbetsdomstolen) delivered its judgment in a gender wage discrimination case (AD dom nr 76/01), the latest in a series of similar cases which had a negative result for the plaintiff, the Equality Opportunity Ombudsman (Jämställdhetsombudsmannen, Jämo), Claes Borgström. On this occasion, the Ombudsman was representing a female nurse, arguing that the fact that she earned less than a colleague at the same workplace, a male medical technician, constituted sex discrimination in breach of equal pay legislation. The Court agreed that the two workers could be seen as performing tasks of equal value. However, according to the Court, it was not wage discrimination to give the medical technician a higher wage. The employer, a county council, could prove that the wage difference had no connection with the gender of the workers but was a result of the existing labour market situation .

A few days later, on 25 September 2001, the Ombudsman announced the withdrawal of a similar case, which was to be dealt with by the Court later in the autumn. The reason given was that the costs of the legal proceedings were too high. It was not worthwhile to carry on with the case as it seemed impossible to win it, the Ombudsman reasoned. In the same announcement, the Ombudsman's office claimed that, in two earlier lost wage discrimination cases in 2001, the Labour Court had requested too little in terms of counter-evidence from the employer. The Court thus, aacording to the Ombudsman, too easily accepted the employers' arguments about 'market wages'.

There have been eight wage discrimination cases taken to the Labour Court since 1984. Out of these cases, the Ombudsman and the employees concerned have lost six and won two. One case that received considerable attention was settled in February 2001, when for the first time the Labour Court accepted a job evaluation method presented by the employee side (SE0103187F).

New rules

In January 2001, amendments to the Act concerning Equality between Men and Women came into effect, introducing new rules which put a greater emphasis on employers to present counter-evidence in equality cases (SE0102179N). However, the legal rules covering the wage discrimination cases mentioned above were the those set out in the earlier version of the Act. The new amendments include provisions concerning the job evaluation process at the Labour Court. In examining what 'work of equal value' means in a particular workplace a comparison must be made between groups performing what is considered as work of equal value. According to the bill 'a job, or work task, is equally valuable with another job if, through a joint estimation of the demands that the work requires, an evaluation may be carried through in consideration of criteria such as knowledge and skill, responsibility and effort. When judging the nature of the work, the work conditions especially should be considered.''

The Ombudsman has recently stated that he believes that the new rules will be much more effective and make it easier for a worker to win a wage discrimination case. On the other hand, one of the major employers' organisations, the Swedish Association of Local Authorities (Kommunförbundet), whose members employ many workers in sectors such as healthcare sector and have been involved in earlier wage discrimination cases, is of a different opinion. Gunnar Bergström, the Association's chief lawyer, has stated that there will probably be no change at all following the introduction of the new rules.

A biased Court?

At the basis of the Ombudsman's dissatisfaction with the Labour Court is a belief that the procedural rules at the Court are unsuitable for wage discrimination cases. He first argued that the members of the Court (who include representatives of trade unions and employers) should be seen as being partial in wage discrimination cases, and now he advocates that as a consequence all such cases should be taken before the public courts (tingsrätten). The point in doing this would mainly be, according to the Ombudsman, the possibility to have the case reconsidered in a Court of Appeal (Hovrätten) according to the rules in the European Convention for the Protection of Human Rights and Fundamental Freedoms. Cases in the Labour Court cannot be reviewed at a higher level.

The chief lawyer at the Swedish Confederation of Professional Employees (Tjänstemännens Centralorganisation, TCO), Ingmar Hamskär, has opposed the Ombudsman both on the issue of possible partiality of the Labour Court, and on the point of removing wage discrimination cases from the Labour Court's jurisdiction. The partiality issue refers to the fact that four of the seven members of the Labour Court are appointed from among the social partners. The Ombudsman considers it improper that members of social partner organisations should take part as judges in wage discrimination cases. In an official statement made by TCO on 9 October 2001, Mr Hamskär stated that the Ombudsman's proposal to move wage discrimination cases to the public courts would lead to decreased legal safety and obstruct effective work against discrimination in working life.

Human rights

Mr Hamskär of TCO argues (in Lag&Avtal 8/2001) that a human right such as wage equality is an obvious issue for trade unions to deal with. Negotiations, and eventually agreements, are the best ways to eliminate local conflicts on such issues. Many conflicts are solved this way, and only a few are taken to court. It is, however, not self-evident what the Labour Court can do within a framework of individual wage negotiations where the 'market' is often seen as the standard for setting pay rates. What burden of proof, asks Mr Hamskär, should there be in a Labour Court case in order to assess whether 'market forces' are an adequate explanation for wage differences between jobs of equal value?

According to Mr Hamskär, other measures than those suggested by the Ombudsman must be drawn up to fight structurally-related wage discrimination - a problem that many female employees come up against in the public sector. This is, however, no reason to move wage discrimination cases to the public courts. A case tried in the open public courts places restraints on the individual. In the Labour Court, the trade union acts as a 'shield' between the individual and the court. Also it is the union that pays the costs of the case. In the public courts, the individual would be on his or her own, although perhaps represented by a lawyer, and the costs would all be on the individual, if he or she loses.

Commentary

A few of the rules in the Act concerning Equality between Men and Women have recently been tightened up in order to strengthen the employees' position in cases of alleged wage discrimination tried at the Labour Court. The Equal Opportunities Ombudsman has for quite some time been fighting in vain to win a case, and lately all cases have been lost. The majority of the Court has consistently ruled against the female workers represented by the Ombudsman, arguing that as long as employers pay male workers higher wages because of the market situation, this can not be seen as wage discrimination.

The Ombudsman optimistically pins his hopes on one of the new rules in the Act concerning Equality between Men and Women, allowing groups of employees performing jobs of equal value to be considered when comparing one individual's work tasks with another's. Personally, the author thinks that, as long as the 'market wage' stumbling block cannot be addressed in a more creative way, the risks of further failure in wage discrimination case is very high. One might change the procedural rules in the Labour Court or move wage discrimination cases to a public court, but the market wage syndrome would still exist. (Annika Berg, Arbetslivsinstitutet)

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