AD 2025 No. 53 – Disfavourabletreatment under the Swedish Parental Leave Act when new duties were assigned to an employee upon returning to work from parental leave

An administrator employed by a Swedish municipality was assigned new duties upon return from her parental leave, which meant that she would be working with a different category of cases and assessments under different regulations than those she had handled before she went on leave. The Labour Court found that the municipality had violated the prohibition against disfavourable treatment in Section 16 of the Parental Leave Act. In its assessment, the Court weighed the employer’s right to manage and distribute work against the employee’s right not to suffer disfavourable treatment due to parental leave.

This case concerns the strong protection afforded to employees on parental leave under Section 16 of the Parental Leave Act. The provision addresses the right of employees and job applicants not to suffer disfavourable treatment for reasons related to parental leave when the employer makes certain decisions, applies pay or other terms of employment, manages and distributes work, or decides on dismissal or other significant measures.

The Labour Court began by outlining the legal framework, noting that the term disfavourable treatment in the Parental Leave Act has the same meaning as in the Discrimination Act. The decisive factor in determining whether a disfavour has occurred is therefore whether a negative effect has arisen for the individual. The Court held that an employee who is assigned different work duties than before, which they do not wish to perform or do not consent to, suffers such a negative effect that constitutes a disfavour. For the disfavourable treatment to be unlawful, there must be a causal link between the leave and the disadvantage. The Court emphasized that a disfavour in violation of the law may exist even if the employer treats an employee on parental leave in the same way as employees absent for other acceptable reasons, such as illness. The relevant question is whether the employee has been treated less favourably than an employee who is not on leave would be treated. The Court also pointed out that parental leave does not have to be the sole or even the decisive reason for the unfavourable treatment. It is sufficient that parental leave is one of several reasons for the employer’s action. When an employee returning from parental leave is assigned new duties, i.e. is moved to another job (Sw. omplacerad), immediately upon their return, even though their previous duties and position remain, the Court stated that “by its very nature, this at least partly occurs for reasons related to the parental leave, namely its conclusion (in whole or in part).”

However, the prohibition against disfavourable treatment does not apply if different terms and conditions or different treatment are a necessary consequence of the parental leave. Referring to the preparatory works to the Parental Leave Act, the Court explained that a “necessary consequence” is when a certain outcome or effect is an inevitable result of full or partial parental leave, in the sense that it cannot be avoided unless the employee on parental leave is treated more favourably than other employees in a way that could be perceived as unfair to them or otherwise appears unreasonable or clearly unjustified. The assessment must also consider EU law, including the so-called Work-Life Balance Directive, which requires Member States to ensure that employees have the right, at the end of parental leave, to return to their jobs or to equivalent posts on terms that are no less favourable. In light of this, and with reference to previous case law, the Labour Court found that, in individual cases, the prohibition against disfavourable treatment in the Parental Leave Act and the EU-based right to return to the same or an equivalent job as an employee on parental leave has when they return to work after parental leave, may limit the scope of the employee’s work obligations (Sw. arbetsskyldighet), and thus also restrict the employer’s right to direct and manage work (Sw. arbetsledningsrätt).

Substantively, the case concerned a care administrator employed by a municipality who had previously worked mainly with elderly care cases, but after her parental leave was instead assigned to cases concerning support for persons with disabilities and social psychiatry, governed by different regulation than she had previously worked with. The municipality argued that the new duties were equivalent, and moreover vacant, and that for various reasons it was most efficient and appropriate for the organization to allocate the cases as it did. The employee maintained that she had been disfavoured for reasons related to her parental leave.

The Labour Court found that, although the duties were similar in some respects, the employer’s organization of the work had resulted in administrators becoming specialized in their respective areas. In this context, requiring the employee to handle a different category of cases than she had previously worked with was, according to the Court, a move to a different job (Sw. omplacering) that the prohibition against disfavourable treatment is intended to protect against. According to the Labour Court, an employee returning from parental leave may only be moved to other duties if it is impossible to allow the employee to return to their previous duties. That was not the case here. The investigation showed that the employee did not wish to handle the new cases, nor did she consent to do so voluntarily; she wanted to continue handling the same type of cases as before her leave (work that still existed at the workplace, but was now performed by colleagues with shorter tenure). When the municipality nevertheless required her to handle the new cases against her wishes, she was, according to the Labour Court, disfavoured. Since this disfavourable treatment occurred precisely when and because the employee ended her parental leave, the Court found that the disfavour was at least partly due to the conclusion of the parental leave.

The Labour Court also found that the decision to assign the employee to other categories of cases was not a necessary consequence of the parental leave, since her previous duties still existed. The fact that these duties were now performed by other colleagues made no difference, as, given the actual circumstances, it could not reasonably be considered unfair, unreasonable, or clearly unjustified for the employee to return to her previous duties after parental leave. Nothing in the case indicated that the other caseworkers would be unable to learn to handle the cases now assigned to the returning employee.

In summary, the Labour Court found that when the municipality assigned the employee new duties upon her return from parental leave, she was disfavoured in a manner related to her parental leave. The court also found that the municipality could not demonstrate that this was a necessary consequence of the leave. The municipality was therefore liable for damages. In view of the circumstances of the individual case, general damages were set at SEK 50,000, which is lower than in cases considered more serious.

Read the full judgment here.

Setterwalls’ comments

The decision highlights the strong protection afforded to employees on parental leave under Swedish employment law, not only during the leave itself but also upon their return to work. The ruling clearly demonstrates how this protection can limit the employer’s otherwise relatively extensive right to manage and distribute work. The legal principle articulated by the Labour Court appears to be that an employee returning from parental leave may only be reassigned to other duties if it is impossible to allow the employee to return to their previous duties (for example, if those duties no longer exist when the employee returns after parental leave).

It is not at all easy – if even possible – to determine from the legislation what changes in duties and working conditions an employee returning from parental leave must accept. This case is therefore a welcomed example of how the Labour Court’s case law can clarify the practical implications of the legislation. The case also serves as a reminder of the importance for employers to carefully plan how an employee on parental leave will return to work when the leave ends, and to be aware of the potential limitations on the employer’s right to direct work this context.