EU judgment on protection against discrimination of fixed-term employees

In Sweden, it is prohibited to discriminate against employees with fixed-term or part-time agreements regarding pay and employment conditions. This follows from a specific law, the Act (2002:293) on the Prohibition of Discrimination of Employees Working Part Time and Employees with Fixed-term Employment. The law is based on two EU directives. Last summer, the Court of Justice of the European Union (CJEU) delivered a judgment, C-268/24 (”Lalfi”), which both clarifies and reminds us how the prohibition should be applied and understood.

In the case at hand, the CJEU examined whether an Italian substitute teacher, who during one school year had three short substitute positions at three different schools, was entitled to a professional development benefit. The benefit consisted of an electronic card loaded with 500 euros per school year for professional development and was, under Italian law, granted to permanent teachers as well as fixed-term substitutes whose contracts covered the entire school year. The substitute was denied the benefit and appealed the decision, invoking the prohibition of discrimination in EU’s Fixed-Term Work Directive (1999/70/EC).

The CJEU held that the prohibition of discrimination also applies to short-term substitute positions and generally reminded us how the prohibition should be applied:

1. For the prohibition to apply, there must be a difference in employment conditions, such as pay or other benefits, where the fixed-term or part-time employee is treated less favourably than permanent or full-time employees.
2. The prohibition of discrimination applies when a fixed-term and a permanent employee, or a part-time and a full-time employee, are in a comparable situation. The decisive factor in assessing whether employees are in a comparable situation is not the form or length of employment, but rather a range of circumstances such as the nature of the work, required qualifications, duties, and employment conditions.
3. Differential treatment can be justified and permitted if the employer can show that there are objective reasons for treating fixed-term or part-time employees differently. The differential treatment must aim to achieve a legitimate, acceptable objective, and the means used must be appropriate and necessary. The objective must also be pursued in a consistent and systematic manner.

In the present case, Italy justified the differential treatment of short-term substitutes by arguing that the purpose of the electronic professional development card was to specifically support teaching carried out on a yearly basis, and that teaching performed by fixed-term teachers with short-term contracts was not considered to fall within that scope. This was because such teachers often work few hours, teach different subjects, and may be employed at several schools outside the regular annual planning. The differential treatment was also justified on budgetary grounds.

The CJEU rejected these arguments and confirmed, as mentioned, that the prohibition of discrimination also applies to short-term substitute positions. The Court reminded us of the principle of proportionality over time, which should be applied where appropriate. In this case, the principle means that a benefit granted to permanent teachers on a yearly basis should also be given to fixed-term teachers, in proportion to the time they have worked.

Setterwalls’ comments

The judgment clarifies the legal framework but does not in practice change current Swedish law. In our experience, employers generally have good knowledge of anti-discrimination legislation and are well aware of the seven grounds of discrimination: sex, transgender identity or expression, ethnic origin, religion or other belief, disability, sexual orientation, and age. However, when it comes to the prohibition of discrimination against part-time and fixed-term employees, we sometimes see that employers’ knowledge is less robust. It is important that employers are aware of and consider the rules prohibiting discrimination against these types of employees when designing employment conditions, policies, and other internal guidelines, to ensure that all employees are treated equally regardless of the form of employment. The judgment is therefore a useful reminder of the applicable rules. Those wishing to explore the subject further and seek guidance on its application in Swedish law are encouraged to consult, for example, Labour Court judgments AD 2024 No. 53 and AD 2008 No. 32.