Introduction
Discrimination law in the UK primarily relies on individual enforcement for addressing discrimination at work. Scholars and practitioners have repeatedly emphasised the gaps and limits of relying on individual enforcement to address discrimination.Footnote 1 Those who are most impacted by discrimination are often the least likely to enforce their rights.Footnote 2 The question then becomes: what role should individual enforcement play in discrimination law? Can we effectively abandon individual enforcement as part of the legislative model?
Drawing on a mixed method, multi-year comparative study of the enforcement of age discrimination law in the UK, Australia and Sweden, in this paper I consider the gaps, limits and risks of the individual enforcement model in discrimination law. Integrating statistical analysis of claims and cases, including 1208 reported UK Employment Tribunal decisions, and 108 Australian cases; 72 qualitative expert interviews with 105 expert respondents in Australia, the UK and Sweden;Footnote 3 and a survey of 76 legal practitioners and advocates in the UK and Australia,Footnote 4 I argue that while individual enforcement is inherently limited as a tool for achieving systemic change, it must remain part of any legislative model for addressing discrimination.
In Part 1, I map problems with individual enforcement, drawing on my empirical study of enforcement in Australia and the UK.Footnote 5 In Part 2, I map the legislative framework in Sweden, where individual enforcement of discrimination law is significantly curtailed, and enforcement instead emphasises the role of trade unions, negotiation and statutory agencies. In Part 3, I compare the macro and micro success of the Swedish model of enforcement with that in the UK and Australia, drawing on OECD and EU statistics on experiences of older workers and discrimination. These statistics illustrate that neither system is ideal; there is scope for significant mutual learning across jurisdictions. Considering gaps in enforcement in Sweden, I argue that individual rights are an important complement to other regulatory tools, particularly in jurisdictions with enduring age norms. We cannot abandon individual enforcement. I therefore put forward reforms to strengthen individual enforcement; and consider the future of the Swedish regulatory model in a concluding section.
1. The problem with individual enforcement: the UK and Australia
Scholars and practitioners are well versed in the difficulties of individual enforcement of discrimination law.Footnote 6 At a theoretical level, individual enforcement models reflect an ‘individualistic vision’Footnote 7 of equality, protecting individuals from unfair treatment on the basis of protected characteristics.Footnote 8 This ignores or minimises the societal, institutional, communal and collective impacts of inequality.Footnote 9 It also prioritises a view of equality as a negative ‘duty of restraint’,Footnote 10 rather than something that should be proactively pursued to prevent harm occurring. Thus, individual approaches to addressing discrimination are unlikely to achieve meaningful systemic change.Footnote 11
In practice, for individuals to use legal mechanisms to address discrimination, they must undergo the process of ‘naming, blaming and claiming’ which is required for a dispute to arise.Footnote 12 Those who experience discrimination: may not recognise it as discrimination; may not be able to identify who is to ‘blame’ for the discrimination; or may be reluctant to make a claim using legal mechanisms. As a result, then, few individuals actually use available legal mechanisms:Footnote 13 age discrimination complaints in both Australia and the UK are rare, despite the reported prevalence of discriminatory treatment.Footnote 14 I have estimated that statutory agencies receive less than 0.09% (in Australia) or 0.08% (in the UK) of possible age discrimination complaints from older workers.Footnote 15 In the Australian Human Rights Commission's (AHRC) National Prevalence Survey, for example, of those who had experienced age discrimination in the last two years (n=309), 43% took no action; the least common way to take action was to discuss or raise the issue with an external organisation (5%) – this was less common than leaving the job in question (6%).Footnote 16
There are many factors that might explain this reluctance to engage with legal complaints mechanisms. Those who are impacted by discrimination rarely fit the stereotype of the rational, utility-maximising individual with the agency required to bring a claim;Footnote 17 instead, those most affected by discrimination are often the most vulnerable at work, lacking both rights awareness and the capacity to pursue their legal rights and entitlements.Footnote 18 As Smith concisely summarises:
Anti-discrimination legislation is designed to protect disempowered groups – those who traditionally experience marginalisation and exclusion. Expecting members of such groups to have the time, security and resources to pursue legal action in order to gain compensation and possibly bring about wider change represents a fundamental regulatory weakness.Footnote 19
For these individuals to undergo the process of ‘naming, blaming and claiming’Footnote 20 would be unusual. The process of claiming is individually costly in terms of time, emotional energy, financial costs, social norms against claiming, and fear of retribution.Footnote 21 Further, claiming is made difficult by limited access to information and legal advice, legal complexity, the need for proof of discrimination, information asymmetries and power disparities between the parties,Footnote 22 restrictive time limits,Footnote 23 low perceived prospects of success, fear of adverse costs orders, and a legislative focus on individualised and retrospective remedies.Footnote 24 Those who experience discrimination are ‘one-shotters’, who rarely use legal mechanisms, whereas employers and respondents tend to be ‘repeat players’, who typically come out ahead.Footnote 25 These barriers are similar across both Australia and the UK.Footnote 26 Understandably, then, those impacted by discrimination may be more likely to ‘lump it’ or leave, rather than to make a formal claim or complaint,Footnote 27 especially if they wish to repair social relationships, or avoid future risk of hurt or harm.Footnote 28
Even if a claim is made, both Australia and the UK rely heavily on confidential conciliation to resolve individual discrimination complaints, especially as they relate to work.Footnote 29 This means most discrimination matters are resolved privately, behind closed doors, and often with a non-disclosure agreement. This has a number of systemic impacts, prompting a culture of secrecy and stigma around discrimination claims.Footnote 30 Further, it makes it difficult to identify ‘lightning rod’ cases that can change public opinion and effect broader change.Footnote 31 Instead, discrimination complaints tend to be resolved quietly, with small amounts of financial compensation, effecting limited change to individual or organisational behaviour.
Overall, then, the UK House of Commons Women and Equalities Committee has concluded that individual enforcement ‘is not fit for purpose’.Footnote 32 Individual enforcement may undermine the transformative potential of equality lawFootnote 33 and is ineffective for addressing age discrimination.Footnote 34 There is a compelling case, then, to think about how we might move beyond individual enforcement; or, indeed, abandon it entirely as a regulatory tool. It is here that the experience of Sweden is particularly illuminating.
2. The Swedish context
Like the UK, Swedish discrimination law has largely been shaped by EU Directives. However, unlike the UK, Sweden has an enduring tradition of collective bargaining and negotiation with the social partners. The Swedish model has been described as ‘corporatist’, that is, the ‘concertation of economic and social policies amongst interest associations and state actors’.Footnote 35 The enforcement of discrimination law has been strongly shaped by this context; as a result, while both the UK and Sweden have adopted similar legislative frameworks to address age discrimination, individual enforcement has been effectively minimised in the Swedish context. For Carlson, then,
The Swedish social partners, the employers, their organizations and the labor unions, keep a fiercely tenacious grip on controlling all labor market issues including discrimination protections, viewing employment discrimination claims as a collective labor, rather than a human rights, issue with no need for individual access to justice mechanisms.Footnote 36
This stands in stark contrast to the ‘privatised’ enforcement model in the UK. It is these national differences that make the comparison between the UK and Sweden particularly aptFootnote 37 and supportive of mutual learning.Footnote 38
(a)The legal framework
Equality is embedded in Swedish constitutional law. Under the Instrument of Government Chapter 1, s 2, there is a non-binding policy provision that:Footnote 39
The public institutions shall promote the opportunity for all to attain participation and equality in society and for the rights of the child to be safeguarded. The public institutions shall combat discrimination of persons on grounds of … age.
Chapter 2, Article 12 also affords protection against discrimination:
No act of law or other provision may imply the unfavourable treatment of anyone because they belong to a minority group by reason of ethnic origin, colour, or other similar circumstances or on account of their sexual orientation.Footnote 40
These constitutional protections are embedded in the Discrimination Act,Footnote 41 which is based, in part, on the Framework Directive.Footnote 42 The Act prohibits direct and indirect age discrimination in employment,Footnote 43 with exceptions for genuine and determining occupational requirements; and different treatment on the basis of age with a legitimate purpose and using appropriate and necessary means.Footnote 44 This closely reflects the Framework Directive.
Strong age norms remain in the Swedish labour market.Footnote 45 In relation to retirement, the so-called ‘67-year-rule’ (as it then was) provides protection for employees to remain at work until the age of 67.Footnote 46 Thereafter, employers have the freedom to terminate an employee's employment with one month's notice,Footnote 47 or to deploy fixed-term contracts. Seniority rules are also often in place for redundancy (that is, the last-in-first-out principle)Footnote 48 and wage setting. That said, even these age norms are shifting: under 2019 amendments to the Employment Protection Act (1982: 80), protection from forced retirement increased to age 68 from 1 January 2020, and to 69 in 2023.
(b)Enforcement
The Equality Ombudsman (Diskrimineringsombudsmannen, DO) is responsible for supervising compliance with the Discrimination Act.Footnote 49 The DO may bring a court action on behalf of an individual with their consent,Footnote 50 as may a non-profit organisation.Footnote 51 The DO may only bring an action if an employees’ organisation does not do so.Footnote 52 Disputes brought by an employers’ or employees’ organisation, or the DO, are heard in the Swedish Labour Court as the court of first instance.Footnote 53 Individuals may only bring a complaint to the District Court;Footnote 54 in these cases, the Labour Court is the superior appellate jurisdiction.Footnote 55 Cases brought by a trade union are subject to mandatory negotiation before proceeding to the Labour Court.Footnote 56
Someone who breaches the Discrimination Act is liable to pay compensation to the person affected.Footnote 57 This is not solely compensatory: according to Ch 5, s 1 of the Discrimination Act, when determining compensation, particular attention should be given to the aim of discouraging or counteracting infringements of the Act. In the context of work, an employer is also responsible for paying compensation for any loss, so long as that loss does not relate to recruitment or promotion.Footnote 58 If there are special grounds or reasons to do so, compensation can be reduced or set at zero.Footnote 59 Discriminatory provisions of individual contracts and collective agreements can be modified or declared invalid.Footnote 60 Termination of a contract can also be declared invalid, and workplace rules can be modified or declared to be of no effect.Footnote 61
Time limits for bringing a claim are set by reference to time limits in employment law.Footnote 62 Consistent with the Employment Protection Act (1982:80) ss 40–42, for example, actions relating to termination or summary dismissal have a time limit of two weeks for a declaration of invalidity, and four months if seeking damages. For other actions, time limits are consistent with the Employment (Co-determination in the Workplace) Act (1976:580). The DO may ‘toll’ or interrupt the statute of limitations, such that a new statute of limitations starts to run.Footnote 63 Time limit rules are complex; this may deter claiming for unrepresented workers.Footnote 64
In the Swedish system, costs typically follow the event;Footnote 65 however, parties can be ordered to pay their own costs in the Labour Court ‘if the losing party had reasonable cause to have the dispute tried’.Footnote 66 This provision is rarely used in practice.Footnote 67 It typically takes around 12 months from the time of application until judgment.Footnote 68
The Labour Court generally receives few cases: according to the Court's website, each year, the Court receives somewhere between 400 and 450 cases, though many cases are subsequently withdrawn.Footnote 69 The court generally issues somewhere between 150 and 160 judgments per year; few of these relate to age discrimination.Footnote 70 In some years, though, the number of cases may be even lower: in the 2019 financial year, for example, the Labour Court received 272 cases, which resulted in 57 decisions.Footnote 71 Only 5% of all disputes related to the Discrimination Act.Footnote 72 The Labour Court issued no judgments concerning discrimination in 2019, and only six discrimination judgments during 2018.Footnote 73 As at 28 July 2022, the DO had recorded only four age discrimination cases decided by the Labour Court,Footnote 74 and four age discrimination settlements relating to work.Footnote 75
That said, as in other jurisdictions, few cases do not necessarily mean few disputes: most disputes will be resolved via negotiation before proceeding to the Labour Court.Footnote 76 Indeed, a matter that proceeds to the Labour Court is seen as a failure of collective negotiation;Footnote 77 matters are typically resolved well before a formal claim is required: if ‘you come from a culture, where going to court is always a bad option, then someone has already lost if you go to court’.Footnote 78 Case and claim statistics therefore do not fully represent the success – or otherwise – of the legal framework; this point is considered in more detail below.
(c)Transparency and equality law
Sweden is notable for its approach to transparency and confidentiality in the context of discrimination law. The Swedish Constitution consists of four fundamental laws, which take precedence over all other laws.Footnote 79 One of these, the Instrument of Government, creates a right to freedom of information when dealing with government bodies. According to Chapter 2, Article 1:
Everyone shall be guaranteed the following rights and freedoms in his or her relations with the public institutions: … freedom of information: that is, the freedom to procure and receive information and otherwise acquaint oneself with the utterances of others.
This, then, creates a general right of openness and transparency in the workings of government bodies, including the DO. This means that all documents sent to and created by the DO are public records, which can be requested by the public, and which must be released unless they contain sensitive personal data.Footnote 80 Thus, all settlement agreements held by the DO are also public records, and potentially subject to disclosure. Non-disclosure agreements are not possible in this context.Footnote 81 Further, if the DO conducts an investigation, the respondent is provided with full access to the investigation file.Footnote 82 This stands in stark contrast to the focus on confidentiality in other jurisdictions such as the UK and Australia:Footnote 83 in Sweden, confidentiality is contrary to the national requirement of public transparency.
That said, the potential for disclosure in Sweden can be bypassed if the parties resolve their complaint without the DO's assistance or intervention; in that case, the requirement of public transparency would not apply if both parties were private entities. Where settlements are publicised, though, ‘that's an important aspect … [we] consider it is [the] most important aspect rather than just the compensation’.Footnote 84
(d)Beyond individual enforcement
The Swedish experience is notable as there is far less emphasis on individual enforcement than in the UK and Australia. This recognises the very real limits of the individual enforcement model: there are other tools to deal with discrimination in Sweden, and ‘often the other tools could be viewed as more efficient’ than discrimination law.Footnote 85 As one respondent in this study noted,
the expectation of private enforcement, as a method, does not account for the great difficulty of actually doing that work … I think there is a flaw to think that this could be solved by private enforcement, unless you have a system with very heavy damages which we will not have in [our] legal culture and not in most European countries either.Footnote 86
The Swedish legal framework is therefore, by design, structured to move beyond individual enforcement. Indeed, it is difficult (if not impossible) for individuals to bring a case without the support of a trade union or the DO.Footnote 87 The weight of enforcement, then, is not on individuals, but on collective and agency processes.
This is consistent with the broader view of the enforcement of rights in Sweden: as one respondent in this study noted,
there are three parallel tracks of enforcing. One is litigation, going to court, with or without support, or trade union or worker representatives, or authorities; but individual cases in courts, one way or another. And the other is public enforcement, where you have some labour inspector or public authorities which is responsible for detecting and enforcing for individuals. The third is [an] industrial relations approach. … trade unionsFootnote 88
The issue in practice, though, is that it can be difficult for individuals to gain either DO or union support to challenge age discrimination.Footnote 89 It is difficult to find evidence or proof of discrimination,Footnote 90 making success in court proceedings unlikely.Footnote 91 Further, unions, the DO and individuals themselves tend not to prioritise or recognise age discrimination, limiting the success of enforcement.Footnote 92 There is a need, then, to scrutinise these non-individualised forms of enforcement more closely.
(i)The DO
The DO is responsible for supervising compliance with the Discrimination Act,Footnote 93 working to ensure discrimination does not occur and promoting equal rights and opportunities,Footnote 94 including through informing and educating government agencies, enterprises, individuals and organisations.Footnote 95 The DO is to provide advice and support to help those who have experienced discrimination to assert their rights.Footnote 96
In the first instance, the DO is to attempt to achieve voluntary compliance with the Discrimination Act.Footnote 97 The DO may investigate whether an organisation is complying with the Act:Footnote 98 those who are subject to the Discrimination Act must, at the DO's request, provide information, give access to workplaces, and attend discussions with the DO.Footnote 99 The DO can order a financial penalty for non-compliance.Footnote 100
The DO may bring a court action on behalf of an individual with their consentFootnote 101 but only if an employees’ organisation does not do so.Footnote 102 While the DO receives complaints of discrimination, not all complaints will be actioned or even acknowledged with more than a form letter.Footnote 103 Litigation is not always the most efficient way of achieving change:Footnote 104 the DO's focus has therefore shifted ‘from the individual … to a structural focus, a move from dispute resolution to bringing cases of strategic value’.Footnote 105 Strategic litigation particularly focuses on cases that clarify the law or highlight and draw attention to problems that exist.Footnote 106 Overall, though, the DO is focusing less on litigation and more on its public enforcement function.Footnote 107 While the DO has extensive legal powers, it is costly to exercise those powers;Footnote 108 running a discrimination claim is costly and time-consuming, even for the DO,Footnote 109 and may not be the best use of finite resources.
Instead of seeking settlements and pursuing litigation, then, complaints are used to inform the DO's enforcement work, by highlighting barriers to equality of opportunity. Thus, complaints are a ‘knowledge base’ for the DO's other work.Footnote 110 In some cases, though, a complaint may lead to the DO initiating a supervisory measure, or proceeding to court in cases of strategic importance. Other complaints might be passed to trade unions.Footnote 111 The challenge, though, is that this shift in the DO's approach was not effectively communicated to the public:
one thing that the Ombudsman could have done better … is communication because this expectation about the reports and what the reports are, that the reports are not just a report of a general problem or a problem, there is also the expectation that the report will also lead to a Court action which is an expectation that cannot be fulfilled. … by not being sufficiently clear in that matter, [the DO has] created expectations or have contributed to maintaining an expectation that cannot be fulfilled.Footnote 112
This might lead individuals to become disillusioned with the DO and equality law more generally. The DO's website is now clear about there being no guarantee of action where discrimination is reported; reporting has also been expanded to encourage by stander reporting.Footnote 113
Perhaps consequently, the DO has been criticised for the low number of complaints it pursues.Footnote 114 The disparity between complaints received and complaints actioned is evident in the DO's statistics. Age discrimination complaints received by the DO have increased by 121% between 2015 and 2021.Footnote 115 Age complaints across all areas increased from 497 in 2020 to 624 in 2021, though this increase largely related to age discrimination in healthcare during the Covid-19 pandemic.Footnote 116 As Table 1 shows, however, few discrimination complaints received by the DO lead to supervisory investigations, court proceedings or judgments;Footnote 117 court proceedings initiated equated to 0.09% of all complaints received in 2021 (and court proceedings do not necessarily originate as complaints).
Table 1. Complaints received and enforcement action, DO, 2019–2021
Source: DO Annual Reports; DO, ‘Statistik 2015–2021’ (2022)
These criticisms and concerns over complaint handling led to a public inquiry into the DO and its handling of matters. The Inquiry report emphasised the DO's role in promoting settlements and agreements:
The Equality Ombudsman's primary task, also in the future, should be to help the parties reach agreement. However, in our opinion the Equality Ombudsman should broaden its work involving consensual solutions and examine the possibility for parties to reach agreement in more cases.Footnote 118
The Inquiry report arguably reflects a fundamental disagreement about what the role of the statutory regulator should be:
there was a general perception that there was a great problem that we did not bring individual claims to Court in a sufficient amount; [the] underlying presumption [is] that's what you should be doing. … They do still think we should work for settlements in some cases, which we don't.Footnote 119
The DO remains disinclined to promote settlements – unless a claimant wants it – in part because it represents a poorer form of justice for those who experience inequality, compared to those who are wronged in other ways:
I do think that there is a rule of law aspect here, which I think needs to be highlighted because somehow just because we are talking about this Commission, just because we are talking about these victims, somehow, the ordinary operations of how we normally ensure the law is complied with disappears.Footnote 120
The DO's focus on strategic litigation has left a gap in assistance for individual claimants.Footnote 121 To address this, local anti-discrimination bureaus have been established as non-governmental organisations designed to combat discrimination. Bureaus typically offer free legal advice to people who have experienced discrimination, and may take cases to court.Footnote 122 The DO is increasingly referring complaints to Bureaus.Footnote 123 However, Bureaus lack the capacity to address all instances of discrimination.Footnote 124
Instead of focusing on complaints and settlements, the DO emphasises its ‘general supervision’ or public enforcement functionFootnote 125 and role in influencing public debate.Footnote 126 This might include, for example, conducting investigations into specific organisations or whole sectors.Footnote 127 This has distinct advantages over individual enforcement, as it does not rely on individuals making a complaint:
you don't need necessarily an individual victim who is willing or capable to go to Court. You are not risking [that] the matters you handle are uniquely the ones that are reported. As we know, there are groups in a society that are not aware of their rights and are [un]likely to report. Some of them cannot read or write and this enables the Ombudsman to act based on other information to take initiatives on their motion.Footnote 128
This approach offers significant advantages, then, over using complaints to determine a statutory agency's priorities, and recognises that gaps in complaining may not mean there is no need for agency intervention.Footnote 129
There is a risk, though, that organisations or entire sectors might delay or defer action to advance equality, on the basis that the DO is conducting an investigation: ‘sectors [that] are under investigation state that: “we are waiting [on the] investigation to see.” So, they are sort of saying an impartial body is looking into this, so we don't need to do anything’.Footnote 130 This might delay progress in addressing discrimination, putting further pressure on the DO – not organisations – to achieve change.
Focusing beyond individual claims also de-emphasises the individualised remedies that are pervasive in the UK and Australia.Footnote 131 As in those comparative jurisdictions, those who experience discrimination in Sweden tend to want something other than monetary compensation:
I would say, [in] nine out of ten cases, the individuals are not in it for the money, you know. [They say] ‘I want this to stop or I want to prevent it from happening to someone else’ or in the general interest of sanctions ‘they should not get away with these kinds of matters’, so very often the compensation aspect is secondary.Footnote 132
However, even where individual enforcement is de-emphasised, equality law is not well set up to move beyond individualised remedies; there are limited financial penalties or sanctions in equality law, for example:
For some reason, when it comes to discrimination equality law, the sanction is supposed to be reparation for the individual that's affected and, preferably, that should be resolved by settlement whereby there is no admission of guilt or anything as part of it. We have tremendous difficulty seeing that as an attractive way of dealing with discrimination cases.Footnote 133
Thus, an emphasis on systemic, supervisory enforcement needs to be backed by more tailored remedies and sanctions: ‘sanctions are the great deficiency’.Footnote 134 These sanctions do not need to be used to be effective; the threat of sanctions can be sufficient.Footnote 135 This is an important area of reform for equality law – in Sweden and elsewhere.
(ii)Collective mechanisms
Unlike the UK, Swedish labour law is typified by substantial collective negotiation and bargaining between the social partners. In 2018, 88% of Swedish employees had the right to bargain, and 65.5% were union members (see Table 2 and Table 3). In 2013, the proportion of Swedish employees in companies that were members of an employers’ organisation was around 81%.Footnote 136 Thus, both employers and employees have a strong collective presence in Sweden. This compares markedly with the other countries under study.
Table 2. Employees with the right to bargain (%), 2005–19
Source: OECD Stat, 2021, OECD/AIAS database on Institutional Characteristics of Trade Unions, Wage Setting, State Intervention and Social Pacts (ICTWSS)
Table 3. Trade union density (% all employees), 2005–19
Source: OECDStat, 2021, OECD/AIAS database on Institutional Characteristics of Trade Unions, Wage Setting, State Intervention and Social Pacts (ICTWSS)
Understandably, then, trade unions and the social partners are seen as playing a substantial role in addressing discrimination at work in Sweden. As one respondent noted, ‘the Swedish system works, or [is] leaning very heavily, I would say, in practice, on the industrial relations process [for enforcement]’.Footnote 137 This system is grounded in collectively negotiated agreements, and local dispute resolution:
The main idea is that if … a trade union representative at [the] local level talks with a member [who] says, ‘Well, I've been discriminated [against] on a matter of this, and I've been dismissed’, or they haven't got paid, ‘I haven't got my holidays’, then you take up grievance negotiations in the workplace; and if you don't agree, then you can have a central negotiation; and if you don't agree on that, then you could go directly to the Labour Court. … There's a hell of a lot of negotiation taking place, but [there are no] clear statistic[s], because it just happens.Footnote 138
Thus, discrimination disputes are likely being resolved at the local level, but this has not been measured or quantified. Trade unions estimate that around 1–4% of central grievance negotiations progress to the Labour Court.Footnote 139 In this context, progressing to court is seen as a failure of the system; ideally, the courts are not required, and disputes are resolved at the local level. For respondents, then, ‘there's reasons we need to be very proud of this system, where it creates rather few court cases’.Footnote 140
However, it is questionable whether unions have engaged with age equality as a priority. For example, Tikkanen and others found that, while measures adopted by the Swedish social partners were often focused on combating discrimination in working life, this did not focus on any particular age group.Footnote 141 Collective agreements do not generally appear to refer to age discrimination, though they may cover age-specific issues such as notice periods, integration measures for younger workers, partial retirement and pensions.Footnote 142 There is limited evidence, too, that informal mechanisms are being used in relation to age discrimination specifically.
There is a question, then, as to whether trade unions are well adapted to dealing with discrimination issues in particular: ‘does this really work in discrimination cases; are trade unions suited for taking into account this kind of pressures of interests, other interests [than] the interest between capital and work?’Footnote 143 Unions arguably have conflicting interests that make them inadequate enforcers of discrimination law;Footnote 144 there are problems with relying on established structures and players to challenge the status quo.Footnote 145 Indeed, claims of discrimination may (indirectly) implicate unions themselves:
there are situations where trade unions … might very well have been involved in the hiring process. … And at least, we have been consulted, so that would be negotiated. So, in a sense, when that decision comes, we are a little part of it. Then that becomes a sort of outside challenge to the system when someone says, ‘I have been discriminated against’.Footnote 146
It is unclear how unions will respond to discrimination claims that involve a conflict of interests between employees or groups of employees, as opposed to between the employer and employee.Footnote 147 Further, while discrimination claims may sometimes come from union members,Footnote 148 they are more likely to come from relative ‘outsiders’Footnote 149 – those unprotected by collectively negotiated solutions. At the same time, the attention of unions tends to be on ‘core’ workers.Footnote 150 Tensions between individual and collective rightsFootnote 151 may lead to discrimination law being seen as a threat by trade unions.
The very nature of discrimination law – or, at least, how discrimination law is perceived – may also lead to hesitancy among trade unions: ‘discrimination is so absolute, right? It makes it a bad fit for our system, which is very pragmatic’.Footnote 152 This partly reflects the different dynamic of discrimination law to other industrial laws:
[trade unions] like to negotiate and in order to negotiate, you need something to negotiate about. Anti-discrimination law … first of all, the nature of anti-discrimination law is that there are hard borders; there are some things that you cannot negotiate about, right? Whereas, we are really comfortable negotiating with everything else, right? So that has made it also more difficult.Footnote 153
There is a strong perception that discrimination law is ‘inflexible’ and therefore not well aligned with established collective mechanisms. In practice, too, trade unions might want to avoid bringing discrimination claims and creating case law or precedent on specific issues, the better to facilitate negotiation in an ambiguous or flexible space:
When we have a landmark case, that changes everything. … a landmark case, if it becomes well known, it can change the framework of those negotiations. … Sometimes, we negotiate in the shadow of the perception of the law … Or you negotiate in the shadow of not really wanting to know what the law says, because that's risky, because that might change the next negotiations. … We don't want to go to court on a thing, because we didn't want an answer.Footnote 154
Further, as in other jurisdictions, alleging discrimination has a strong moral weight or stigma attached: ‘Discrimination is a very strong statement, in a sense. … If someone says, “You are discriminating,” that's escalating a conflict’.Footnote 155 Thus, any reference to discrimination or discrimination law might be avoided to support collegiate negotiation. Trade unions may also avoid discrimination claims due to a lack of government funding to train and upskill union representatives in equality law: ‘Maybe if we had seen that kind of massive training of trade unionists and employers, [discrimination law] would have had a bigger impact’.Footnote 156
Overall, then, discrimination law is seen as a limited tool for Swedish trade unions, as it does not always assist in negotiations; this compares, then, to the situation in other jurisdictions, where discrimination law might be useful:
for colleagues in other countries, discrimination law is a fantastic tool, because it gives them something – and also something to use in negotiations, clearly. But for us, we have other tools that are better.Footnote 157
Thus, in practice, trade unions appear to rarely seek to enforce discrimination law, either in negotiation or bargaining, or through supporting individual claims. While disputes might be resolved at the local level, it is difficult to assess how common this might be.Footnote 158
(iii)Positive duties
The Discrimination Act also makes provision for ‘active measures’ in working life, a form of positive duty.Footnote 159 Active measures are preventative, and seek to counteract discrimination and promote equal opportunities.Footnote 160 Until 2017, this did not extend to the ground of age: it was confined to sex, ethnicity, and religion or other belief. Active measures now apply to all grounds, including age.
Employers must undertake specified work in relation to active measures.Footnote 161 Work related to active measures must be continuousFootnote 162 and involves:
• identifying risks of discrimination and obstacles to equal opportunities;
• analysing the causes of these risks and obstacles;
• taking preventative and promotional measures that may be required; and
• following up and evaluating the work undertaken.Footnote 163
Employers need to conduct this work in relation to:
• working conditions;
• salary and terms of employment;
• recruitment and promotion;
• education and skills development; and
• combining work and parenthood.
Employers and employees are required to cooperate in undertaking this work;Footnote 164 employers, then, need to provide relevant employee organisations with information to facilitate that cooperation.Footnote 165 Work on active measures needs to be documented each year by employers with more than 25 employees;Footnote 166 those with 10–24 employees only need to document their salary survey.Footnote 167 Failure to comply with the active measures requirements may lead to an order to fulfil the obligations and a fine.Footnote 168
Active measures have significant potential to put the obligation on employers – not employees – to identify and address equality risks.Footnote 169 They have the potential to reframe equality law to achieve systemic change.Footnote 170 However, the way active measures requirements are framed have proven difficult for the DO to monitor and enforce:
there's been a false truth that [the DO does] not monitor [active measures]. We do, but the problem with that is … the way the duties are expressed. It is their duty to do that, monitor it, but they are not necessarily qualified to say how you should do it, and what you should do etc, so, the focus is very much ‘have you done it, yes or no?’. And if you've done it, ‘have you identified something, yes or no?’ and if you have, ‘are you planning to do something about it?’Footnote 171
This represents a minimal standard of scrutiny. Further, for the DO to challenge what an organisation has (not) done, ‘you have to have a pretty clear thing of what it is that they should do’.Footnote 172 This can be difficult to assess in more fluid areas, such as making a work environment supportive of people of all ages.Footnote 173 It is also arguably contrary to one of the key aims of positive duties, which is to promote organisational problem-solving:
the whole point is that you're supposed to have a structural thinking about it and, with all due respect, it's very difficult to order someone to have a structural thinking about something. … The purpose of the legislation is to force employers to consider these matters and have an active work, and it's difficult to force people to have an active work without telling them what they should be doing, which we don't have the right to do. So, there's a little bit of a catch-22 there.Footnote 174
That said, enforcement of the active measures requirements can work hand-in-hand with supervision of the general prohibition of discrimination; if organisations lack the processes to undertake active measures, they are also at risk of infringing the stricter prohibitions against discrimination.Footnote 175
Further, trade unions may appreciate the fluidity of the active measures requirements, and the emphasis on cooperation in determining active measures work, which is more in keeping with the focus on negotiation in Swedish labour law:
what we have been saying is that we want more of this sort of semi-mandatoriness [sic], which we have got now, more possibilities – especially this active measure, negotiate active measures, that's what we want and now we have that.Footnote 176
The challenge going forward, then, is to make active measures ‘part of the ordinary systems of negotiation’.Footnote 177 Thus, while enforcement by the DO might be difficult, the breadth and flexibility of the active measures requirements may lend them to action and enforcement by trade unions, providing a way for trade unions to better engage with equality law.
(iv)Gaps in enforcement
What this discussion shows, then, is that there are critical gaps in enforcement for age discrimination law in Sweden. While the Swedish ‘corporatist’ model has moved beyond individual enforcement, collective and agency enforcement mechanisms are rarely used. Very few cases are brought by the DO or by trade unions.Footnote 178 There is an ‘ambiguity’ as to who is responsible for the enforcement of discrimination law in the Swedish context,Footnote 179 and a general lack of interest in age equality.Footnote 180 Further, as few cases are brought, important issues have not been clarified or tested in case law.Footnote 181
If the DO, trade union or other non-profit organisation are unable or unwilling to bring a claim, individuals face substantial barriers in enforcing their rights, including the risks of adverse costs orders;Footnote 182 costs typically follow the event. As Carlson has mapped, costs can significantly outstrip the damages awarded.Footnote 183 Individuals left without the support of a trade union or the DO can take on significant financial risks in pursuing a claim:
the employees represented by trade unions at the Labour Court, they are generally getting a very good legal representation, without huge economic risks. The ones not represented by trade unions, but [who] choose their own legal advice or lawyers, … we see a lot of cases where people are given bad legal advice, which costs them a hell of a lot of money. They lose their job, and they go to court to [challenge their] employers and they end up losing their job, and losing the case, and having to pay two, or three, or four hundred thousand Swedish kronor [in costs]Footnote 184 … I'm sitting there saying, ‘You should have asked. I could have told you that it was impossible.’ … [lawyers] are not risk-averse on behalf of them.Footnote 185
This makes it nearly impossible for individuals to pursue their rights without support:
the system … is not conducive at all because of the costs and because of these things. … in reality what it means is that a great number of people will not get their matters to Court … these matters are extraordinarily difficult to bring to Court successfully. There is also a gap between what is perceived as discrimination, what is legally something you can determine as discrimination and what you can actually succeed with in Court [with] credibility and witnesses and all sorts of other stuff.Footnote 186
It is likely, then, that many instances of discrimination simply go unaddressed.
3. Macro and micro perspectives on the effectiveness of enforcement
For individuals, then, it can be nearly impossible to pursue a discrimination claim in Sweden without the support of an institutional actor. The courts appear effectively inaccessible for those without the backing of the DO, a trade union or a local anti-discrimination bureau.
However, the accessibility of individual enforcement is not the only way to evaluate the effectiveness of legal systems. Malmberg posits that there are two different ways of measuring whether enforcement is ‘effective’.Footnote 187 The first, ‘micro’, view considers whether individuals (with or without the assistance of regulators or trade unions) can enforce their rights.Footnote 188 This micro view is focused on the accessibility of enforcement mechanisms.
The second, ‘macro’ view considers ‘how rules manifest in society as a whole’; that is, is equality achieved in practice?Footnote 189 For Malmberg, enforcement through trade unions or industrial relations approaches will often lead to high levels of compliance or macro effectiveness.Footnote 190 As one respondent noted,
the industrial relations approach … could be effective, from a macro perspective of enforcement, because … depending on how the industrial relations system works in different countries, there is better presence at the workplace to determine what's actually happening out there, making sure this is in line with the rules, and so on.Footnote 191
However, an industrial relations approach does not always offer sufficient guarantees of individual rights to achieve micro effectiveness.Footnote 192 On the surface, this appears to be an apt description of the current enforcement of age discrimination law in Sweden.Footnote 193
That said, it is unclear whether trade unions are adequately enforcing age discrimination law to achieve ‘macro’ effectiveness; indeed, the interviews conducted in this study seem to indicate that there is limited enforcement occurring at the local level. With strong and enduring age norms, a strong statutory agency – and strong agency action – is likely required to challenge the existing status quo.Footnote 194 Relying on the social partners to negotiate in a way that challenges age-normative standards will likely prove ineffective, particularly when those most affected by age discrimination are rarely ‘core’ workers.Footnote 195
Given these concerns, in this Part I ask – is there evidence of ‘macro’ effectiveness of age discrimination law in Sweden? Or, rather, what evidence, if any, can we identify of macro effectiveness? Answering these questions is difficult, given the lack of relevant data collected by government and international bodies. This is a challenge for empirical legal research more generally and reflects our (de)valuing of legal data.Footnote 196
However, there is some, limited, survey data that provides an indication of the macro effectiveness of age discrimination law and its enforcement in Sweden. In particular, if age discrimination law were being enforced effectively, we would expect to see:
• high rates of workforce participation for older workers;Footnote 197
• high reported job quality for older workers;
• low reported rates of age discrimination at work; and
• high perceptions of equality law's effectiveness.
This raises a related question, though: who is our comparator, and what are ‘high’ and ‘low’ rates of these indicators? For this study, it makes sense to use the UK and Australia as the comparators (given they were the comparative jurisdictions under study); but, given this research has identified compelling problems with the enforcement of age discrimination law in those jurisdictions, achieving similar rates to jurisdictions with individual enforcement models may indicate enforcement problems. Age discrimination law in the UK and Australia has been generally ineffective at achieving workplace change;Footnote 198 thus, if the figures for Sweden are similar to those in the UK and Australia, enforcement mechanisms may be similarly ineffectual across the jurisdictions.
In terms of the labour force participation rate for older workers (Table 4), Sweden significantly outperforms both Australia and the UK, for both men and women.
Table 4. Labour force participation rate (%), by sex, 55–64, 2010–21
Source: OECD Stat, 2022
Perhaps, though, this simply reflects higher workforce participation rates in Sweden, across the life course? Table 5 therefore compares workforce participation rates across the life course (ages 15–64) with participation rates for those aged 55–64, at two times periods (prior to the Covid-19 pandemic, and during/after). While workforce participation rates are higher in Sweden for the general workforce, there is also significantly less disparity between the rates of participation for all ages, and those for older workers in Sweden. Sweden is significantly outperforming Australia and the UK in the employment of older workers.
Table 5. Labour force participation rate (%), by sex, 15–64 and 55–64, 2019 and 2021
Source: OECD Stat, 2022
Further, job strain among older workers in Sweden appears far less common than in Australia or the UK (Table 6). Older workers in Sweden are far more likely to experience workplace autonomy. Thus, it is not just that workforce participation rates are high: older workers in Sweden likely also experience better job quality than those in the UK and Australia.
Table 6. Job strain (%) and job strain indicators (%), 50–64, 2015
Source: OECD Stat, 2022, OECD calculations from European Working Conditions Surveys (EWCSs) and International Social Survey Programme (ISSP)
Strong workforce participation rates and high job quality in Sweden may reflect stronger employment protection generally, not the effectiveness of age discrimination law.Footnote 199 Our attention must therefore turn to discrimination law specifically. EU surveys have found that the UK and Sweden perform similarly in relation to reports of age discrimination. In the 2019 Special Eurobarometer 493: Discrimination in the EU, for example, age discrimination was perceived as being less common in Sweden than in the UK (Table 7).Footnote 200 The issue, of course, is that strong age norms may mean that respondents do not perceive age-based treatment as being discriminatory.
Table 7. Perceived frequency of age discrimination, Special Eurobarometer 493: Discrimination in the EU (2019)
Indeed, when respondents were asked if they personally had felt they had been discriminated against or harassed on the basis of age (being perceived as old, or young) in the last 12 months,Footnote 201 this was reported by double the number of respondents in Sweden (10%, or 96 respondents) as in the UK (5%, or 50 respondents) (Table 8). In both jurisdictions, age discrimination was one of the most common forms of discrimination reported (eclipsed only by gender discrimination, at 11% and 6% of respondents in Sweden and the UK respectively).
Table 8. Personal experiences of age discrimination, last 12 months, Special Eurobarometer 493: Discrimination in the EU (2019)
That said, this may simply reflect the demographics of respondents in each jurisdiction: the Swedish sample was significantly older than respondents in the UK (Table 9). This may distort the reported responses, assuming older respondents are more likely to experience (or recognise) age discrimination.
Table 9. Age of respondents, SE and UK, Special Eurobarometer 493: Discrimination in the EU (2019)
Importantly, though, when respondents were asked whether efforts to fight discrimination in their jurisdiction were effective,Footnote 202 UK respondents were more likely to see efforts as effective than respondents in Sweden (Table 10). This may indicate, then, that there is scope to do more to achieve both micro and macro effectiveness of age discrimination law in Sweden.
Table 10. Perceptions of effectiveness of efforts to fight discrimination, SE and UK, Special Eurobarometer 493: Discrimination in the EU (2019)
Conclusion: the future of the Swedish model
Individual enforcement of discrimination law is inherently problematic. Few complaints are likely to be raised; even fewer will be successful in courts or tribunals. There is much to be learnt from the Swedish model for countries with ‘privatised’ enforcement models, like the UK. In particular, there are compelling lessons for the UK around transparency, moving beyond complaints to set statutory agency priorities, and expanding the role of trade unions and collective action to advance equality.
It appears, though, that the Swedish corporatist model, which severely curtails individual access to courts and tribunals, has fundamental limitations for achieving systemic change, particularly in an area like age discrimination law. The social ambivalence to age equality in Sweden makes reliance on collective negotiation a fraught path for achieving social change.Footnote 203 Age discrimination law ‘collides’ with accepted social values like seniority;Footnote 204 this goes to the heart of how Swedish society sees fairness and equality: ‘in due time, you get your share. … seniority is … this kind of idea [of] what is just. Everybody gets [a share] in due time, and a huge part of society is based on such ideas’.Footnote 205 Thus, the 67-year rule (as it then was) is an accepted feature of the labour market.Footnote 206 The ability to retire is a point of prideFootnote 207 and a success for the welfare state; people needing to work into older age is, conversely, a failure of the welfare state.
This social acceptance of age discrimination may explain why there is a general lack of interest in age discrimination law in Sweden:Footnote 208 age discrimination is not a priority for statutory regulators or the social partners; there is generally little consideration of age discrimination.Footnote 209 This is likely to raise further problems in the implementation of active measures requirements; age equality is unlikely to be at the forefront of organisational change processes.
Gaps are evident, too, in the way equality law is framed; the remedies and sanctions that can be imposed under equality law do not support or enhance a focus on systemic, collective enforcement. At the same time, though, Swedish discrimination law is firmly constrained by EU law, the framing of which was influenced by discrimination law in the US and UK.Footnote 210 The focus on individual enforcement in EU lawFootnote 211 is an awkward fit with the Swedish model of industrial relations. It is unsurprising, then, that these issues of enforcement have emerged in practice. There is seen to be little that can be done to amend Swedish discrimination law within the confines of EU law.Footnote 212 Our focus, then, should turn to how these mechanisms are being used in practice.
Improving the effectiveness of age discrimination law in Sweden therefore requires grappling with perceived tensions between ‘fixed’ and ‘rigid’ discrimination laws and a tradition of collective negotiation. Individual discrimination rights and collective action do not need to be in conflict with each other. As Bogg has argued, while ‘“individualism” and “collectivism” can seem to be locked in a kind of zero-sum game for supremacy’,Footnote 213 the reality is more complex.Footnote 214 Indeed, strong legal regimes tend to have complementary individual and collective legal protections,Footnote 215 including in relation to age discrimination law.Footnote 216 There is scope, then, to use individual discrimination rights to strengthen collective enforcement, and vice versa.Footnote 217 This potential has not yet been realised in the Swedish context.
It is likely, too, that increasing retirement ages – and extending the 67-year rule to become the 69-year rule – may lead to higher numbers of age discrimination claims and disputes into the futureFootnote 218 and a renewed focus on age discrimination law. Employers may be more inclined to challenge workers on performance grounds if they are expected to engage a worker until the age of 69.Footnote 219 Growth in precarious, part-time, and insecure employment arrangements might also challenge age normative standards,Footnote 220 though Sweden is not there yet.Footnote 221 There are broader concerns, too, as to how long the Swedish system can endure; even Sweden is seeing declining union density in some areas. As one respondent noted, ‘the power of the trade union density is the key. If it falls much more, somewhere down the line it becomes problematic’.Footnote 222 There is a need to be attuned to how these issues continue to evolve over time.
Overall, then, individual rights and individual enforcement remain important complements to other regulatory tools, particularly in jurisdictions with strong enduring age norms. Abandoning or severely restricting individual enforcement is unlikely to support either the macro or micro effectiveness of age discrimination law. While over-reliance on individual claims is highly problematic, excluding or preventing individual claiming can be just as damaging. There is thus a need to better enable individual claims in the Swedish system, through a review of costs orders, conciliation options, the Labour Court's approach to the burden of proof, and broader provision of legal aid. Individual enforcement can become a critical tool for advancing the effectiveness of age discrimination law, and can be mutually reinforcing and supportive of other, non-individualised approaches.Footnote 223 Our challenge going forward is to strengthen administrative, judicial, individual and collective approaches to enforcement, so they can work together to advance age equality.
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