{"id":59051,"date":"2026-06-22T10:52:30","date_gmt":"2026-06-22T08:52:30","guid":{"rendered":"https:\/\/setterwalls.se\/?post_type=articles&p=59051"},"modified":"2026-06-26T10:53:04","modified_gmt":"2026-06-26T08:53:04","slug":"ad-2026-no-39-discrimination-accessibility-objective-grounds-in-cases-of-incapacity-for-work","status":"publish","type":"articles","link":"https:\/\/setterwalls.se\/en\/article\/ad-2026-no-39-discrimination-accessibility-objective-grounds-in-cases-of-incapacity-for-work\/","title":{"rendered":"AD 2026 No. 39 \u2013 Discrimination\/accessibility \u2013 objective grounds in cases of incapacity for work"},"content":{"rendered":"
\n
\n
\n
\n
\n

The Labour Court found that the Prison and Probation Service had objective grounds for terminating a prison officer who, due to a disability, lacked the capacity to work in their role. The court considered that it was not reasonable to require the employer to offer the employee a full-time position and subsequently adapt it to part-time work. Consequently, the employee had not been subjected to discrimination on the grounds of lack of accessibility either.<\/em><\/p>\n

Background:<\/strong><\/p>\n

The case concerned a prison officer who had been employed on a permanent basis by the Prison and Probation Service since 2010, but who was terminated in February 2024 on personal grounds. The prison officer had a congenital hearing impairment and, during their employment, was diagnosed with several further conditions, including fibromyalgia, osteoarthritis, chronic fatigue syndrome, sleep apnoea, and anxiety and depression. These conditions resulted in periodic sick leave from 2016 and full-time sick leave between 2019 and October 2023.<\/p>\n

The Prison and Probation Service carried out extensive rehabilitation measures over several years. A work capacity assessment was carried out in 2020 via the occupational health service and was supplemented by a new assessment in September 2023. According to the 2023 assessment, the prison officer lacked the capacity to work as a prison officer. It was also assessed that her capacity to work in an administrative, well-adapted role was limited to 50 per cent for the foreseeable future. In October 2023, the Prison and Probation Service carried out a redeployment assessment, which found that there were no vacant part-time positions corresponding to 50 per cent of a full-time position within the Prison and Probation Service.<\/p>\n

The parties agreed that the employee lacked the capacity to work as a prison officer, that the impairment was permanent, that the Prison and Probation Service had fulfilled its rehabilitation obligation, and that the employee\u2019s long-term mental and physical illnesses constituted a disability within the meaning of the Discrimination Act.<\/p>\n

The main question before the Labour Court was whether it was reasonable to require the Prison and Probation Service to redeploy the prison officer to a vacant full-time position and then adapt it to part-time work, given that the prison officer\u2019s capacity for work was permanently reduced to 50 per cent.<\/p>\n

The Labour Court:<\/strong><\/p>\n

Legal principles<\/em><\/p>\n

Under Section 7 of the Employment Protection Act, a termination by the employer must be based on objective grounds. A reduction in working capacity due to illness or injury does not, as a rule, constitute objective grounds. However, an exception applies if the reduction is so significant and permanent that the employee can no longer perform work of any significance to the employer. The employer must therefore investigate the possibility of redeployment and any necessary adjustments, though without any obligation to create new positions or make major organisational changes. A further condition is that the employee must possess sufficient qualifications for the new role.<\/p>\n

Under the Discrimination Act, it is prohibited to discriminate against an employee with a disability on the grounds of a lack of accessibility. Discrimination occurs if the employer has not taken reasonable accessibility measures that could have placed the person in a comparable situation to that of a person without a disability. The assessment of what is reasonable depends on the circumstances of the individual case, and measures that would have a significant impact on the business cannot be required.<\/p>\n

Under the Employment Directive, employers must take appropriate measures to enable a person with a disability to participate in working life. Adjusting working hours could constitute such an appropriate measure, but this presupposes that a national court (in our case, a district court or the Labour Court) assesses that such an adjustment does not impose a disproportionate burden on the employer in the circumstances of the individual case.<\/p>\n

Assessment<\/em><\/p>\n

According to the Labour Court, the investigation showed that the prison officer\u2019s state of health had improved significantly since 2020. However, according to the court, this positive development did not in itself provide grounds for questioning the assessment and prognosis made in the 2023 work capacity assessment, neither in terms of the extent of the employee\u2019s work capacity (50% in a well-adapted administrative role) nor in terms of the adjustments required for the prison officer to be able to perform their duties. The Labour Court further held that an employee whose work capacity is limited due to a disability cannot automatically be regarded as lacking the qualifications for full-time employment simply because she is only able to work part-time. The court noted that it may be reasonable to require redeployment to a full-time position with adapted working hours, but that for such an adaptation to be regarded as a reasonable measure, it should normally be assumed that the impediment to working capacity can be considered temporary, at least in the slightly longer term, and an overall assessment must be made in each individual case.<\/p>\n

In the present case, according to the work capacity assessment, the employee was deemed unable to cope with the duties of the vacant administrative positions, as these placed high demands on resilience to stress, personal responsibility and flexibility. The Labour Court also considered that a reduction in working hours for an administrative position would lead to redundancy. The fact that the Prison and Probation Service would be in a constant need of recruitment, which could not be met by a full-time position adapted to part-time working, was deemed to constitute such a requirement for reorganisation that it could not reasonably be expected of the employer.<\/p>\n

In summary, the Labour Court found that, given the prison officer\u2019s capacity for work, he could not be expected to cope with the duties of the positions that were vacant within the Prison and Probation Service at the time when redeployment was being considered. It was further noted that offering the prison officer a full-time position would not constitute a reasonable accommodation, as this would require the Prison and Probation Service to expand its operations by employing an additional person.<\/p>\n

Against this background, the Labour Court found that the termination was based on objective grounds and that the prison officer had therefore not been subjected to discrimination in the form of a lack of accessibility.<\/p>\n

Setterwalls\u2019 comment:<\/strong><\/p>\n

The judgment provides important guidance on the issue of an employer\u2019s duty to redeploy employees with a disability that results in reduced working capacity. The Labour Court confirms that reduced working capacity to part-time work does not in itself mean that the employee lacks the qualifications for a full-time position. At the same time, the court rules that, in individual cases, it may be unreasonable to require the employer to offer full-time employment if this would, in practice, mean that the employer would have to expand its operations by recruiting additional staff.<\/p>\n

The ruling emphasises that the assessment of reasonableness depends on a holistic assessment that takes into account the size of the employer, the nature of the business and the employee\u2019s individual circumstances. In this case, the decisive individual factor was that the employee\u2019s capacity for work was permanently reduced, and the court suggests that the outcome might be different if the reduction were temporary and there were a more positive prognosis for the employee\u2019s capacity for work.<\/p>\n

A practical conclusion from the ruling is that, when conducting a redeployment assessment, it is not sufficient merely to note that there are no part-time positions available. The employer must consider whether it is reasonable to adapt a full-time position. The practical advice is that, in doing so, the employer should also document in writing both which vacant positions are available and why any adaptations are deemed unreasonable.<\/p>\n <\/div>\n <\/div>\n <\/div>\n <\/div>\n <\/section>\n","protected":false},"excerpt":{"rendered":"","protected":false},"author":11,"featured_media":58754,"template":"","meta":{"_acf_changed":true,"_seopress_robots_primary_cat":"","_seopress_titles_title":"","_seopress_titles_desc":"","_seopress_robots_index":""},"article_category":[1043],"class_list":["post-59051","articles","type-articles","status-publish","has-post-thumbnail","hentry","article_category-employment-and-pension-law"],"acf":[],"_links":{"self":[{"href":"https:\/\/setterwalls.se\/en\/wp-json\/wp\/v2\/articles\/59051","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/setterwalls.se\/en\/wp-json\/wp\/v2\/articles"}],"about":[{"href":"https:\/\/setterwalls.se\/en\/wp-json\/wp\/v2\/types\/articles"}],"author":[{"embeddable":true,"href":"https:\/\/setterwalls.se\/en\/wp-json\/wp\/v2\/users\/11"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/setterwalls.se\/en\/wp-json\/wp\/v2\/media\/58754"}],"wp:attachment":[{"href":"https:\/\/setterwalls.se\/en\/wp-json\/wp\/v2\/media?parent=59051"}],"wp:term":[{"taxonomy":"article_category","embeddable":true,"href":"https:\/\/setterwalls.se\/en\/wp-json\/wp\/v2\/article_category?post=59051"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}