sou · H8B379 · 2020-12-15 00:00:00 — We propose that in working to produce regulations in the sphere of working life under Chapter 3 of the Discrimination Act, in addition to consultations with the regulation council, DO also consult the labour market partners before making a decision on regulations. Such consultation is important because the conditions for working on measures can vary between different industries and such circum- stances can affect whether the regulations are applicable in practice and backed by the employees and employers whom they concern. The obligation for DO to consult the labour market partners is to be incorporated in DO’s instructions. Financial penalties to remain as a sanction Regarding sanctions for breach of the provisions on measures in Chapter 3 of the Discrimination Act in working life and in higher education, we judge that the imposition of a financial penalty should remain as a form of sanction in cases where an employer or a higher education provider fails to comply with the requirements of the Act. DO’s broad mandate together with the agency’s limited super- visory resources might advocate the introduction of additional sanc- tions, e.g. in the form of sanction charges so as to attempt to increase compliance with the provisions on measures in the Discrimi- nation Act. Sanction charges might be assumed to be more effective than imposing a financial penalty because a sanction charge can be paid immediately without the object of supervision needing to be given time for rectification. However, there are arguments that advocate not introducing sanc- tion charges in this area. The rules on measures in Chapter 3 of the Discrimination Act set out a working process that partly seeks to ensure that employers and education providers devote themselves to the questions, set their own goals and reach the right measures based on the circumstances and needs of the respective activity. respect in which situations breaches of these rules arise is not exactly stated. The inquiry judges that the provisions in general lack the clarity and precision required for breaches to be able to be sanctioned with a charge. Proposal regarding the Board against Discrimination The inquiry has considered different alternatives to the current system whereby the Board against Discrimination determines questions on the imposition of a financial penalty. Based on its deliberations, the inquiry has judged that the Board against Discrimination is to remain, although with fewer members. The purpose of this change is to sim- plify and improve the efficiency of the Board’s processing of cases. Under the proposal, the Board is to comprise seven members. The chair and deputy chair are to be lawyers with experience from serving as judges, one member is to be appointed following a propo- sal from the employer side, one member is to be appointed following a proposal from the employee side, two members are to be lawyers with experience from work on discrimination issues and one mem- ber is to have specific knowledge on the university and higher edu- cation sphere. Each member is to have a deputy. With reduced numbers, we consider that decisions by the Board are to be made in plenary session, i.e. all members are to participate in all decisions. Submissions on the imposition of a financial penalty for the sphere regulated by the Education Act are no longer to be sent to the Board because supervision will be transferred to the Swedish Schools Inspec- torate and the sanctions of the Education Act will apply instead; see below on the inquiry’s proposal to transfer supervision to the Swedish Schools Inspectorate. Central employee organisations to be given primary right to turn to the Board against Discrimination We propose that central employee organisations to which an em- ployer is bound by collective agreements be given primary right to make a submission to the Board against Discrimination regarding the imposition of a financial penalty. Today only DO has the primary right to bring a matter before the Board against Discrimination regarding the imposition of a finan- cial penalty. Central employee organisations have a subsidiary right, i.e. they can only bring a matter before the Board if DO does not. In the view of the inquiry, however, the subsidiary right for employer organisations is purely a formality, as in practice DO does not make a submission to the Board, in order to allow the employee organisa- tion to do so on its own. The central employee organisations also already have a primary right when it comes to approaching the Labour Court on discrimi- nation matters involving their own members. Because in practice it is a formality for employee organisations to first ask DO, such a change will not change the balance between the labour market part- ners in any practical terms either. We judge that the work on measures can become more effective if one and the same party deals with the case from the case first being brought until the point where requesting the imposition of a financial penalty may be called for. Today proceedings regarding the imposition of a financial penalty are brought before a district court by DO under the Discrimination Act. A consequence of the proposal that central employee organi- sations be granted a primary right to approach the Board against Discrimination with a request to impose a financial penalty is that the employee organisation must also be able to approach the district court with a request to impose the financial penalty. We therefore propose that if the applicant in a financial penalty case before the Board against Discrimination is a central employee organisation to which the employer is bound by collective agreements, the claim for the imposition of a financial penalty is to be able to be brought before the district court by the central employee organisation. Collaboration between the Equality Ombudsman and the Swedish Work Environment Authority We propose that the Government task DO and the Swedish Work Environment Authority with working together on systematic work environment work as set out in the Work Environment Act (1977:1160) in relation to measures in the Discrimination Act. The provisions on measures in Chapter 3 of the Discrimi- nation Act and the provisions on systematic work environment work in Chapter 3 of the Work Environment Act have many points in common, and there are advantages to integrating the work across these areas where possible. Both the agencies already have an agreement on collaboration. The agencies also conduct shared information events. However, it is important that DO and the Swedish Work Environment Authority build further on their new collaboration and find additional forms of collaboration in which they can jointly support employers, not least because the work of the two agencies has so many points in common. A mandate on collaboration might, for example, involve issuing joint public advice on how systematic work environment work and work on measures could be coordinated. Consideration of an equality representative One fundamental criterion underlying functioning work on measures is that this is conducted in collaboration between employee and employer. The obligation for employee and employer to collab- orate is set out in Chapter 3 of the Discrimination Act. Work on measures would, however, benefit from deeper cooperation between employees and employers. There is also a need for greater employee participation in the work involved. The inquiry therefore proposes that the Government consider investigating the question of whether equality representatives should be introduced, capable of more directly representing the interests of the employees in work on measures. The inquiry’s proposals and considerations on transferring supervision and the right to bring an action to the Swedish Schools Inspectorate Supervisory responsibility, right to bring an action and sanctions The inquiry proposes that supervisory responsibility for the sphere in the Discrimination Act that is regulated by the Education Act be transferred from DO to the Swedish Schools Inspectorate. The admin- istrative sanctions of Chapter 26 of the Education Act (2010:800) will apply to supervision. The right to bring an action in cases for compensation for discrimination on behalf of children and school students in the sphere covered by the Education Act will also be transferred from DO to the Swedish Schools Inspectorate. The Child and School Student (BEO) will perform duties regard- ing protection from discrimination and compensation for discri- mination in the same way as for damages due to abusive behaviour in line with the instructions of the Swedish Schools Inspectorate. The right of non-profit organisations to bring an action for compen- sation for discrimination will continue to apply in the same way as today. The right to bring an action is thus not to be extended to also cover abusive behaviour. The proposal is firstly based on the fact that the personnel resources of the Swedish Schools Inspectorate for exercising super- vision are almost ten times that of DO. Furthermore, the area super- vised by the Swedish Schools Inspectorate is limited to the sphere covered by the Education Act, while DO supervises several different areas. The supervision exercised by the Swedish Schools Inspec- torate also takes place on the ground in schools themselves to a certain extent, while DO, considering the agency’s limited resources, only operates what is termed desk-based supervision. The Education Act also provides more effective sanctions than the Discrimination Act. The Discrimination Act lacks administrative sanctions for breach of the prohibitions in Chapter 2 of the Dis- crimination Act, with compensation for discrimination being its only sanction. Where there are deficiencies in measures under Chapter 3 of the Discrimination Act, the only recourse is to call on the Board against Discrimination to impose a financial penalty. Under the Education Act, instead damages are to be paid in cases both of abusive behaviour and for deficiencies in work on measures. In addition to damages, the Education Act also contains a number of different administrative sanctions, such as an order to fulfil obligations, which can be associated with a financial penalty. reprimand, revoking approval, consent or grants and being prohib- ited from running activities. The Swedish Schools Inspectorate/BEO and DO have different mandates and interpret these in different ways. Currently, the Swedish Schools Inspectorate and BEO investigate all reports of abusive behaviour that are not obviously irrelevant. Since 2013 DO’s work has been focused on investigating those cases that can have the great- est effect on societal development. DO brings action in cases that are of interest as a matter of principle, or in cases where there are particular grounds to do so. On top of this, DO does not pursue cases that involve an educa- tion provider failing in its duties to investigate and take action against harassment and sexual harassment between children and certain school students, because the agency considers that such a court case would not be compatible with the best interests of all the children involved. Furthermore, the cases on compensation for discrimina- tion for harassment and sexual harassment under the Discrimination Act are investigated in a slightly different way by DO than cases involving damages due to abusive behaviour are investigated by the Swedish Schools Inspectorate/BEO, due to the fact that the Acts in question have been interpreted somewhat differently by the courts in case law. Finally, in certain respects, the Swedish Schools Inspectorate is better placed than DO to conduct supervision because in the Educa- tion Act, but not in the Discrimination Act, there is an opportunity for the Government or the agency decided on by the Government to issue regulations on certain questions. Additionally, the for Education has previously provided general advice on work to combat abusive behaviour and discrimination, which we assume will be re-addressed once supervisory responsibility has been transferred to the Swedish Schools Inspectorate. In the view of the inquiry, the different circumstances of the two agencies means that it is more difficult to conduct supervision or obtain compensation for discrimination in general than for abusive be- haviour in the sphere regulated by the Education Act. factory, as discrimination is often founded in structural injustices and the oppression that certain groups may experience. If one and the same agency has the supervisory role and the right to bring an action regarding both discrimination and abusive be- haviour, the differences in the way these matters are addressed will also be reduced. This is a step that allows the child’s best interests to be rather than the structure of the regulatory framework or the interfaces between the two agencies. Because the Swedish Schools Inspectorate already works on issues in the same area, syn- ergies also arise between its different tasks. Like the assessments made by previous inquiries, we consider that the perspective of the child’s best interests must be vital to the stance regarding transfer. The perspective of the rights of the child has subsequently been strengthened in Swedish law with the incor- poration of the UN Convention on the Rights of the Child into Swedish law from 1 January 2020. All in all, discrimination in the area regulated by the Education Act can better be tackled by transferring the supervisory responsi- bility and the right to bring an action to the Swedish Schools Inspec- torate. Afollow-on question which then arises concerns the non-profit organisations which have the right to bring action under the Discri- mination Act regarding claims for compensation for discrimination, but where a corresponding right to bring an action for damages due to abusive behaviour under the Education Act is lacking. In practice, the non-profit organisations that bring action in discrimination cases are often the anti-discrimination . The inquiry considers that there are fundamental reasons not to expand the right of the non- profit organisations to bring an action. There is currently a regulation that enables them to also bring action against abusive behaviour in a case regarding compensation for discrimination that is already in progress. However, according to information received from several , there is no need for a right to bring an action on cases purely of abusive behaviour. The inquiry shares this view. As a whole, we therefore consider that there are no grounds to propose expanding the right to bring an action of the non-profit organisations. The material provisions on discrimination are to remain gathered in Chapter 2 of the Discrimination Act We further propose that the provisions on the prohibition of dis- crimination and reprisals and the education provider’s obligation to investigate and take action for the sphere regulated by the Education Act continue to be set out in Chapter 2 of the Discrimination Act. The background to this stance is as follows. The introduction of the Discrimination Act saw the introduction of a system of cohesive legislation against discrimination. The purpose was to create a clearer and more effective tool against discrimination and similar protection against discrimination, irrespective of the grounds for discrimina- tion and the area of society in which it occurred. We consider that, in the future, there will also be great value in cohesive legislation against discrimination, because this aids clarity and accessibility. It would therefore be unfortunate to separate out the rules for one particular area in a piece of legislation other than the Discrimination Act. In the future too, compensation for discrimination should not be paid out for claims other than those regarding discrimination, as this could water down the specific meaning of the compensation. The inquiry considers that our proposals to transfer the super- visory responsibility and the right to bring an action to the Swedish Schools Inspectorate means significant coordination of work to combat discrimination in the sphere regulated by the Education Act. In the future, the supervisory responsibility for the provisions on both abusive behaviour under the Education Act and discrimination under the Discrimination Act will rest with the same agency, i.e. the Swedish Schools Inspectorate, which will also have access to the administrative sanctions of the Education Act. The new proposal will also mean that opportunity to bring an action on behalf of an individual for compensation for discrimination and damages due to abusive behaviour will rest with the Swedish Schools Inspectorate. The inquiry considers that these proposals already address a num- ber of the problems inherent in the current system. The Swedish Schools Inspectorate’s supervisory tools will be applied to all activity in schools. Parents, guardians and students alike will not need to turn to different government agencies with different resources and working methods. The opportunity to obtain help in obtaining redress will thus also become equal, whether it concerns discrimination or abusive behaviour under the Education Act. This also means that combined courses of events will be able to be investigated in a single context by a single agency. In cases where the agency needs to bring an action before the court on behalf of the child or school student for both damages and compensation for dis- crimination, this action must be brought before the general courts. The courts should then, in the view of the inquiry, also be given the opportunity to make an assessment regarding the entire matter. The inquiry proposes that the material provisions on measures regarding discrimination should also remain gathered in the Dis- crimination Act. The content of the provisions on measures regarding abusive behaviour is to be coordinated with the rules on measures regarding discrimination in the sphere regulated by the Education Act, but remain in the Education Act. At the moment, the Discrimination Act contains provisions on measures regarding discrimination in the sphere regulated by the Education Act, and the Education Act contains provisions regard- ing abusive behaviour. One problem is that the requirements on measures in both acts include both differences and similarities. One overarching difference is that the work on measures under the Education Act must be goal-oriented while the regulation of measures under the Discrimination Act places the emphasis on a working process based on risks and obstacles. This constitutes a problem for activities regulated by the Education Act, because an education provider that has met the requirements of the Education Act will not simultaneously have met the requirements of the Dis- crimination Act. We consider that there should be coordination between the rules in the Discrimination Act that cover the sphere regulated under the Education Act, and the provisions of the Education Act. Our conclu- sion is that the Discrimination Act’s provisions on measures are more appropriate than the equivalent provisions in the Education Act. They have also recently been reviewed and reworked with the aim of providing clearer rules that can more easily be used as the basis of supervisory measures. We therefore propose that equivalent provisions that exist on measures regarding discrimination in the Discrimination Act be incorporated, with certain necessary adap- tations, in the rules on measures against abusive behaviour in the Education Act. This will thus also ensure that the material rules on measures regarding discrimination remain in one place in the Discrimination Act. The inquiry judges that this will facilitate and improve the effec- tiveness of work on the measures to prevent both discrimina- tion and abusive behaviour and so lead to better protection for children and school students. to issue regulations on measures The inquiry proposes that the for Educa- tion be granted the opportunity to issue regulations regarding work on measures against discrimination under the Discrimination Act in the sphere regulated by the Education Act and against abusive behaviour under the Education Act. Here the agency is to collabo- rate with both DO and the Swedish Schools Inspectorate. Regarding measures in working life and in higher education above, we proposed that DO be granted the opportunity to issue regulations. As stated, the inquiry considers that there is a need for regulations that actualise the legislation, and naturally the same sup- port should be provided in the area regulated by the Education Act. DO is an expert agency regarding discrimination. Based on our previous proposal, DO will be drawing up regulations on work on measures against discrimination in working life and in higher education. At the same time, our proposals mean that the supervisory authority for the sphere regulated by the Education Act regarding discrimination and the right to bring an action will be transferred from DO to the Swedish Schools Inspectorate, and that the sanctions set out in the Education Act will apply. for Education has first-hand know- ledge of the field of education and its specific conditions. Our over- arching view is that it is necessary for the requirements on measures against discrimination and abusive behaviour to be coor- dinated to make systematic quality work easier and more effective. We therefore propose that the for Edu- cation be responsible for drawing up regulations for work on measures, not only against abusive behaviour under the Education Act but also against discrimination under the Discrimination Act in the sphere regulated by the Education Act. However, this presup- poses that the for Education will work with DO and the Swedish Schools Inspectorate such that the content of the regulations can be coordinated. Knowledge boost for the Swedish Schools Inspectorate and collaboration between the agencies We propose a knowledge boost regarding discrimination at the Swedish Schools Inspectorate. This could be achieved through recruit- ment and internal training on discrimination. The inquiry further proposes that DO, the Swedish Schools Inspectorate and the for Education work together in tackling discrimination in the sphere regulated by the Education Act. The obligation to work together is to be set out in the instructions of the respective agencies. As a background issue, the inquiry has analysed the differences between the Discrimination Act and the Education Act. We have drawn the conclusion that in some questions, there are differences that are significant to the right to bring an action and to the question of compensation and, by extension, to how effective supervision of regulation can be. The basis of our proposals, however, is that the material rules on discrimination are to remain in the Discrimination Act, and that the material provisions on abusive behaviour are to remain in the Education Act. Furthermore, our remit is limited to the questions of transferring supervision and the right to bring an action. We have considered coordinating these separate issues, but have mainly drawn the conclusion that such coordination would demand a review of all the areas in the Discrimination Act, not merely the sphere regulated by the Education Act. This falls outside our remit. We do, however, propose coordination on the question of legal costs. In cases concerning discrimination in the sphere regulated by the Education Act, we propose that the courts be able to order each party to bear their own legal costs, even if the Swedish Schools Inspectorate brings the action for an individual. 1.1Förslag till lag om ändring i diskrimineringslagen (2008:567)