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Dismissal of an Employee who Refused to Wear Face Mask at the Workplace

Precedential Decision by Judiciary or Regulatory Agency

Author: Anna Jerndorf, Partner and Head of Employment – TM & Partners

The Swedish Labor Court recently ruled in a case (AD 2022 no. 50) where a company engaged in the storage and distribution of pharmaceuticals introduced a mandatory requirement for employees to wear face masks during the COVID-19 pandemic. The employee claimed that wearing a face mask made him feel unwell and would cause health problems, referring to a medical certificate. The company tried to be accommodating by offering the employee to work as much as possible in a special area of the warehouse where face masks were not a requirement, but the employee was found on several occasions in another part of the warehouse without wearing a face mask. The employee made it clear to the employer that he did not intend to wear a face mask and was subsequently absent from work for periods. As a result of the employee’s actions, he was dismissed from his employment. The employee claimed that there had been an agreement that he did not have to wear a face mask, but it was not proven that such an agreement existed.

According to the Swedish Labor Court, it is within the employer’s management discretion to determine which equipment employees should wear at the workplace. In some cases, refusal to obey an order is justified; for example, an employee does not have to obey an order if it puts the employee in danger of life or health. However, the court did not consider that there was evidence to prove any health risk, as the medical certificate appeared to be based entirely on the employee’s own statements. The court therefore concluded that the employee had been obliged to obey the order. The assessment considered the fact that the requirement for face masks was made during a pandemic to reduce the spread of a public disease, which had been clearly explained to the employee. In such circumstances, the fact that the employee was repeatedly on the premises without wearing a face mask and unlawfully absent from work, despite the company having shown due consideration and made the necessary adjustments, was considered a serious breach of the employment contract. Thus, the court ruled that there were legal grounds for the dismissal.

Employee or Temporary Agency Worker?

Precedential Decision by Judiciary or Regulatory Agency

Author: Anna Jerndorf, Partner and Head of Employment – TM & Partners

In a recent case (AD 2022 no. 45) before the Swedish Labor Court, a moped delivery person entered into a framework agreement with a temporary employment agency to deliver services on an as-needed basis in accordance with the instructions provided by the agency or the agency’s clients. The delivery person performed work for one of such clients, a food delivery service company (the client company). After the client company suspended the delivery person from the app through which he received his work shifts, the delivery person argued that he had been dismissed from his employment with the client company. The company argued that the delivery person was not employed by it but was instead employed by the temporary employment agency and hired out to the company.

The Swedish Labor Court stated that the overall assessment usually made to determine whether a person is an employee or a contractor cannot be applied directly in respect of hiring-out of workers. The client company and the temporary employment agency had concluded a service agreement which stated that the agency would enter into employment contracts with persons who would be provided to the client and that the agency would have employer responsibility for those persons. There was no agreement between the company and the delivery person. Taking this into account, the court found that the agency had entered into an employment contract with the delivery person for the purpose of hiring him out to the client company to work under the client company’s control and direction, entirely in accordance with the service agreement. The court therefore ruled that there had been a hiring out of an employee under the Agency Work Act (2012:854), i.e., that the delivery person was a temporary agency worker and that the client company had not dismissed him.