New legislation proposed to promote employment of older and disabled workers

Although there are several legislative provisions in Sweden protecting the interests of older people and people with disabilities in working life, these groups often have difficulties in finding employment. Two proposals which aim at improving the situation are pending during summer 1998.

Sweden has a number of legislative provisions aimed at protecting two groups with special difficulties on the labour market - older people and people with disabilities. These are as follows.

• The Act on Certain Measures to Promote Employment aims specifically at helping these groups of people to obtain and to maintain employment, by authorising the county labour boards and the National Labour Market Board (Arbetsmarknadsstyrelsen, AMS) to influence employers' employment policies.
• Those who have a job are also protected by the Act on Security of Employment. Dismissals must be based on "objective grounds", and the fact, for example, that the performance of an ageing worker is declining or that a worker is struck by a lingering illness or a severe injury does not constitute objective grounds, unless it permanently impairs the worker's capacity to such an extent that he or she will never again be able to perform work of any significance for the employer. Older employees are also indirectly protected by the statutory order of priority in case of collective redundancies. Employees with reduced working capacity who have been given special duties because of their disablement have priority for continued work, irrespective of their place in the general order of priority.
• All these rules are supported by the provisions of the Work Environment Act. This legislation puts a general obligation on the employer to adapt working conditions to the needs of the individual worker. This could mean making purely technical arrangements, as well as giving him or her some kind of personal support or organising the work in a special way. Furthermore, the employer is responsible for the rehabilitation of employees who become incapacitated - be it by work injuries or by factors unrelated to the work.

System based on voluntary agreement

Thus the situation is comparatively secure for those who have managed to get a job. Older people and people with disabilities who are seeking employment do, however, still experience great difficulties. The main principle in the private sector is that an employer is free to employ whomever it wants, and the Act on Certain Measures to Promote Employment does not infringe this freedom in practice.

The Act puts two obligations on employers:

• when asked by the county labour board, an employer must provide information on the composition of its workforce as regards age, sex, main tasks and the number of workers with disabilities. It must also inform the board of any approaching redundancies, lay-offs, replacements or vacancies; and
• the employer is obliged to take part in talks with the county labour boards. The aim of these talks is that employers are expected to offer employment to older people and people with disabilities or to take measures which will promote the employment of such persons. The talks may also deal with the working conditions for persons already employed by them.

Thus, the system is based on voluntary agreements. The Act nevertheless gives the authorities some means of bringing pressure to bear on employers who refuse to cooperate:

• in the first instance, the county labour board may give the employer directions on what to do to improve the opportunities for older people and people with disabilities to obtain or maintain employment in the company. It may also instruct the employer to increase the share of such employees up to a certain quota; and
• as a last resort, if an employer fails to follow the directions, AMS may forbid the employer to recruit persons other than those who come through the public employment offices.

The latter possibility has not been utilised once in the 24 years that the Act has existed. A vast majority of the county labour boards have never issued directions to an employer either. When asked for an explanation, they state that the mere existence of the provisions has been enough to make the employers cooperate.

New legislation proposed

Nevertheless, older people and people with disabilities still have more difficulties than others in finding employment. Therefore, the Government appointed a committee in 1997 with the task of proposing legislation aimed at improving the situation. One of the committee's proposals (SE9801166N) resulted in a bill presented to Parliament on 5 June 1998 with a proposal for an Act prohibiting discrimination against people with disabilities in working life. At present, no such legislation exists. The Act will give individuals who feel that they have been discriminated against because of their disability the right to have their cases tried in court. In an individual case, the employer may be obliged to adapt the workplace to the needs of the applicant in order not to legally discriminate against him or her.

The committee was also asked to examine whether there was still a need for provisions on general measures promoting the employment of older people and people with disabilities. On 11 August 1998, it presented a proposal wherein it concluded that there was a need for such legislation as a complement to the proposed Act prohibiting discrimination in individual cases. However, the Act on Certain Measures to Promote Employment should be replaced by a new one with similar provisions. Unlike the present Act, it should cover only job applicants, to enable the authorities to concentrate their efforts on those who are experiencing the most difficulty. However, the committee recommended that the options of ordering an employer to increase its share of older people and people with disabilities up to a certain quota and of forbidding the recruitment of workers other than those from the public employment offices should be abolished. The only compulsory powers afforded to the authorities should be the possibility to order employers under penalty of a fine to take measures which would enable older people and people with disabilities to work for the company in question.

Commentary

Parliamentary time will not be available to adopt an Act prohibiting discrimination before the general elections in September 1998. If the non-socialist parties win, the bill might be withdrawn. They may not disagree with the present Government on the objective of such an Act but, as they all have deregulation in their programmes, they may disagree on the means of achieving this objective.

The future of the proposal for a new Act on the promotion of employment for older people and people with disabilities thus remains uncertain, although it is possible that the non-socialist parties may be happy to accept the need for such legislation. It could be argued that the new proposals do not in fact increase the responsibilities of employers in practice - in some respects they would amount to a form of deregulation compared to the present situation. (Kerstin Ahlberg, Arbetslivsinstitutet)