I lagens trygga famn? Skyddet för föräldralediga och gravida enligt två regelverk

Sammanfattning

The purpose of this thesis is to examine how the Discrimination Act and the Parental Leave Act protect individuals on parental leave and pregnant women from discrimination and disadvantageous treatment, as well as how these laws interact. It also aims to analyze the Swedish Labour Court's application of the concept of comparison in the Parental Leave Act and the requirement of a comparable situation under the Discrimination Act, investigating any differences in their application. It is concluded that pregnant women are protected against gender discrimination through the EU case Dekker, which has been incorporated into Swedish legal practice. In 2006, a gender-neutral prohibition against disadvantageous treatment was introduced into the Parental Leave Act, covering all individuals on parental leave, including pregnant women. Both laws are not always invoked in cases of disadvantageous treatment of pregnant women. One of the reasons for this is that it remains challenging to determine whether an employer's decision is based on the pregnancy or the parental leave. Furthermore, it is argued in the thesis that the protections are not equivalent, as the Parental Leave Act includes an exemption clause, while the Discrimination Act is nearly absolute in nature. Although a comparison is not explicitly required under the Parental Leave Act, the essay shows that the Labor Court’s construction of comparisons is carried out in a manner similar to that used under the Discrimination Act. The construction typically depends on the type of employer decision in question. However, the unique position of employees on parental leave in the labor market poses certain challenges in its application. Finally, it is argued that the Labor Court’s lack of detailed reasoning makes it difficult to fully understand why the application of comparisons has varied across cases concerning the Parental Leave Act.