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Arbetsrättsligt skydd för föräldralediga arbetstagare. En normativ analys.

Wahlby, Olivia (2008)
Department of Law
Abstract
Sweden has a very favourable legislation regarding paid parental leave. However, in the labour market this is not always something positive. Absence from the workplace, and especially a long one, may disturb the employer's organisation and there is a risk that employers compensate for this by, in the worst case, avoiding to employ workers of a fertile age. Further, back at the workplace after the parental leave, employees risk to miss out on benefits, wage increases or promotions. Since it is mostly women who, according to traditional sex roles, use the right to parental leave and therefore are more exposed to different forms of unfair treatment, this is very much a question of equality. The purpose of my paper is to examine the protection... (More)
Sweden has a very favourable legislation regarding paid parental leave. However, in the labour market this is not always something positive. Absence from the workplace, and especially a long one, may disturb the employer's organisation and there is a risk that employers compensate for this by, in the worst case, avoiding to employ workers of a fertile age. Further, back at the workplace after the parental leave, employees risk to miss out on benefits, wage increases or promotions. Since it is mostly women who, according to traditional sex roles, use the right to parental leave and therefore are more exposed to different forms of unfair treatment, this is very much a question of equality. The purpose of my paper is to examine the protection provided by law in these cases. This includes, in addition to the regulation in Sweden, a review of the development of the social policies in the field of EC-law as well as the impact it has had on Swedish legislation. In 2006 a stronger inhibition article, in terms of unfair treatment, reinforced the protection in the Swedish Parental Leave Act. This reinforcement was an improvement in many ways. The protection of the former article was only active in cases where the unfair treatment was based solely on the fact that the employee had taken parental leave. Now, it is enough if this circumstance is one of the grounds of the employer's treatment. The article also covers more situations than before. However, the protection for pregnant employees and job applicants is still stronger. In the Equal Opportunities Act, which covers these situations, there are for example fewer possibilities for exceptions. My analysis is based on a theory of normative patterns and the examined legal area can be understood as a balance between different competing interests or normative patterns, predominantly the market functional pattern and the pattern of protection of the established position. The essence of the theory is to analyse legal conflicts in the light of these normative patterns. The main principle when is comes to labour law is the employer's right to manage his or her own company - clearly a norm supporting the market functional pattern. The prohibition against unfair treatment has the purpose to constitute a protection against this main principle and thus strengthen the normative pattern of the established position. My conclusion is that the purpose of the legislation, i.e. making it easier for the employee to combine working life with a responsibility as a parent, has in theory obtained a stronger support. However in society, and this is obvious in the legal practice of the European Court of Justice, there are strong patterns and standards which still consider motherhood to be more important to protect than parenthood and furthermore, that working life should not be disturbed by parenthood more than what is absolutely necessary. However, even if a single norm cannot do the whole job of changing social progress, it can provide some assist as an instrument in shaping new behaviour and expectations regarding parenting. (Less)
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author
Wahlby, Olivia
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Arbetsrätt
language
Swedish
id
1562839
date added to LUP
2010-03-08 15:55:30
date last changed
2010-03-08 15:55:30
@misc{1562839,
  abstract     = {Sweden has a very favourable legislation regarding paid parental leave. However, in the labour market this is not always something positive. Absence from the workplace, and especially a long one, may disturb the employer's organisation and there is a risk that employers compensate for this by, in the worst case, avoiding to employ workers of a fertile age. Further, back at the workplace after the parental leave, employees risk to miss out on benefits, wage increases or promotions. Since it is mostly women who, according to traditional sex roles, use the right to parental leave and therefore are more exposed to different forms of unfair treatment, this is very much a question of equality. The purpose of my paper is to examine the protection provided by law in these cases. This includes, in addition to the regulation in Sweden, a review of the development of the social policies in the field of EC-law as well as the impact it has had on Swedish legislation. In 2006 a stronger inhibition article, in terms of unfair treatment, reinforced the protection in the Swedish Parental Leave Act. This reinforcement was an improvement in many ways. The protection of the former article was only active in cases where the unfair treatment was based solely on the fact that the employee had taken parental leave. Now, it is enough if this circumstance is one of the grounds of the employer's treatment. The article also covers more situations than before. However, the protection for pregnant employees and job applicants is still stronger. In the Equal Opportunities Act, which covers these situations, there are for example fewer possibilities for exceptions. My analysis is based on a theory of normative patterns and the examined legal area can be understood as a balance between different competing interests or normative patterns, predominantly the market functional pattern and the pattern of protection of the established position. The essence of the theory is to analyse legal conflicts in the light of these normative patterns. The main principle when is comes to labour law is the employer's right to manage his or her own company - clearly a norm supporting the market functional pattern. The prohibition against unfair treatment has the purpose to constitute a protection against this main principle and thus strengthen the normative pattern of the established position. My conclusion is that the purpose of the legislation, i.e. making it easier for the employee to combine working life with a responsibility as a parent, has in theory obtained a stronger support. However in society, and this is obvious in the legal practice of the European Court of Justice, there are strong patterns and standards which still consider motherhood to be more important to protect than parenthood and furthermore, that working life should not be disturbed by parenthood more than what is absolutely necessary. However, even if a single norm cannot do the whole job of changing social progress, it can provide some assist as an instrument in shaping new behaviour and expectations regarding parenting.},
  author       = {Wahlby, Olivia},
  keyword      = {Arbetsrätt},
  language     = {swe},
  note         = {Student Paper},
  title        = {Arbetsrättsligt skydd för föräldralediga arbetstagare. En normativ analys.},
  year         = {2008},
}