Erik Grahn: Mänskliga fri- och rättigheter i anställningsavtalets marginaler

Abstract

The European Convention on Human Rights (ECHR) was incorporated into Swedish Law in 1995. Since then, it has been invoked by employers, employees, and the LabourCourt several times in proceedings before said court. This book describes the way that Swedish law on the employment contract has been, and should be, influenced by the demands that the convention puts on the state of Sweden.The book is divided into three parts. The first gives a general overview of Swedish law on the employment contract and the ECHR. It also explores the theorization of that law, and the history connected to it. The second part of the book contains a detailed exploration of the case law on the right to privacy, freedom of expression and freedom of religion, from mainly the European Court of Human Rights and the Swedish Labour Court. Some case law is given a more cursory description, and other case law is read more closely, exploring many aspects of the court's reasoning. A guiding theme is the tension between rights based reasoning and consequentialist weighing. In the third part of the book some general themes from the examined case law is discussed, together with some conclusions on what can be said about Swedish and Strasbourg legal culture on the basisof the case law readings of the books second part. It is suggested that Swedish courts should adopt a certain mode of reasoning whentrying human rights claims in the employment context. This should include considering all relevant aspects, demanding that employers may only rely on concrete risks to their interests except when health and safety is concerned, encouraging employers to discuss and compromise with employees and sometimes unions, weighing all consequences for the employee. It is also argued that due to their differently perceived importance for society, freedom of expression is valued higher than the other rights, and the right to privacy for judges is valued higher than might be expected for other groups of workers.