Proposed law to protect personal privacy at work
The Swedish government has made a new legislative proposal on the protection of personal privacy in working life, with the help of a special commission set up to evaluate the current legislation. The proposal sets out mainly five stricter regulations on surveillance or control measures used by employers. The trade unions have in general reacted positively to the proposal, but the employer organisations are very critical of the content of the proposal.
Commission set up to examine existing legislation
The last time the Swedish government proposed new legislation on personal privacy at work was in 2002. At that time, the proposal was criticised to such an extent that it was discarded. Obscurities in the existing legislation and its interpretation, along with increased infringements of personal privacy in working life through greater control and surveillance of employees (for instance, by using video cameras or requesting medical tests) have prompted the government to assign a special commission the task of examining the legislation again. The commission comprised leading experts from the Swedish Labour Court (Arbetsdomstolen) and the Confederation of Swedish Enterprise (Svenskt Näringsliv), among others. At the beginning of May 2009, the commission submitted its proposal, Personal privacy in working life (75Kb PDF) (Integritetsskydd i arbetslivet, SOU 2009:44), to the Minister of Employment, Sven Otto Littorin. Subsequently, the proposal was referred to the social partners for consideration until 1 September 2009. In the meantime, the social partners have given their views on the legislative proposal, as well as participating in public debates and recent workshops on the matter.
The government, social partners and the Labour Court agree that the existing regulatory framework on protection of personal privacy of workers in the workplace is unclear and difficult to understand. However, they disagree on the content of the new proposal.
Content of proposal
The legislative proposal consists mainly of five new measures or amendments:
- three changes in the Personal Data Act 1998:204; the act is based on Council Directive 95/46/EC which aims to prevent the violation of personal integrity in the processing of personal data and on the free movement of such data;
- prohibiting employers from obtaining certain data extracts on employees from criminal records, the National Social Insurance Agency (Försäkringskassan), the Swedish Enforcement Authority (Kronofogdemyndigheten) or credit reporting bureaus;
- stricter regulation of employers’ ability to request employees to undergo a medical examination;
- prohibiting privacy-invading measures such as conducting surveillance or background checks that constitutes a manifest infringement on an employee’s personal privacy (such as IQ tests, wiretapping telephone calls, searching lockers, analogue camera surveillance in toilet areas), unless the measure was taken for an authorised purpose;
- a mandatory provision obliging the employer to negotiate in advance with the trade unions in the manners prescribed by the Co-Determination Act (Medbestämmandelagen, MBL 1976:580), when planning to introduce surveillance or control measures. The commission also proposes to ask the Data Inspection Board (Datainspektionen, a public authority which aims to protect the individual’s privacy in the information society) for an opinion regarding the employers’ handling of personal data.
Reactions of social partners
The Swedish Confederation of Professional Employees (Tjänstemännens Centralorganisation, TCO), which has also been represented in the reference group of the commission, demands clear and appropriate legislation on personal privacy in working life. TCO is highly critical of the existing legislation, stating that it is obscure and therefore not functioning as expected. Therefore, TCO strongly supports the new legislative proposal, as it should make the legislation in the area of personal privacy at work much clearer due to the fact that a single piece of legislation will be valid in the future compared with several at present.
The Swedish Trade Union Confederation (Landsorganisationen, LO) has also reacted positively and is supportive of the new legislative proposal, particularly regarding the fact that the regulation is expected to also apply to temporary agency workers, jobseekers, stand-ins for absent workers or those taking on temporary posts, and trainees. However, LO wants to see even further restrictions on the ability of employers to demand medical examinations of workers other than what the legislation proposes and requests that trade unions should be able to refuse the employer’s request until the Labour Court has ruled on whether it is appropriate.
The Swedish Association of Local Authorities and Regions (Sveriges Kommuner och landsting, SKL) is also generally positive about the new legislative proposal, especially regarding the fact that it introduces a common regulation and framework for the private and public sectors, which has not been the case before now. However, SKL does not support the clause about general prohibition of surveillance and control measures.
The Confederation of Swedish Enterprise is not supportive of the legislative proposal, and criticises the commission for prohibiting employers from getting information on employees by demanding extracts form different data sources such as criminal records. A labour law expert at the Confederation of Swedish Enterprise, Lars Gellner, stated during a workshop organised by the confederation that it is difficult to see any positive advantages of the proposal in general. He argues that costs and administration associated with the amendments will increase and be a great disadvantage both for public authorities and employers. The employer organisations emphasise that they have to be able to check if their employees have a history of or recurring problem with drug abuse or criminal activity in order to conduct business outside Sweden with international or global companies, which often request guarantees that employees are not, for example, taking illegal drugs.
Karolin Lovén, Oxford Research