SWEDEN Law and Practice Contributed by: Robert Stromberg and Malin Dunér, Advokatfirman Cederquist KB
guarantees in connection with employers conducting HR internal investigations. However, certain time lim - its must be adhered to, including in investigations of sexual harassment and harassment; under the Dis - crimination Act (2008:567), these must be initiated in a prompt manner, and failure to do so may imply an obligation to pay discrimination compensation. If termination or summary dismissal is considered necessary following an investigation, such meas - ures may not be based solely on circumstances that were known to the employer more than two months before notice of the dismissal or termination is given. When employers impose labour law sanctions, such as redeployment, termination or dismissal, the rules and processes stipulated in the Swedish Employment Protection Act (1982:80), the Co-Determination at the Work Place Act (1976:580) and the applicable collec - tive bargaining agreement must be adhered to. If an employer fails to comply with these regulations, the termination or summary dismissal may be declared invalid, and the employer may have to pay economic as well as general damages for invalid termination or other violations of said regulations. Additionally, cir - cumstances that would have provided legal grounds for termination may become unavailable due to pre - clusion or the statute of limitations. 5.2 Internal Regulations For whistle-blowing reports, the Whistleblowing Act (2021:890) stipulates that it is mandatory for employ - ers with 50 or more employees to document the whis - tle-blowing channels and related procedures in writing – ie, in a whistle-blowing policy. Employers are further required to have guidelines and procedures for handling sexual harassment/harass - ment in a discrimination policy following the Discrimi - nation Act (2008:567), as well as for handling victimi - sation and bullying (usually included in the mandatory work environment policy, as stipulated in the Swedish Work Environment Act (1977:1160) and the provisions issued by the Swedish Work Environment Authority). These documents should contain procedures for employers investigating potential sexual harassment, victimisation and bullying (as well as ill health or acci - dents). A written discrimination policy is required for employers with 25 or more employees, and written
documentation regarding the handling of victimisa - tion and bullying is required for employers with ten or more employees. Employers may set their own internal requirements for investigations, as long as these requirements meet the minimum level set by legislation and comply with the general principles of objectivity, discretion and confi - dentiality, as well as with the rules on data processing stipulated in the GDPR. It is, however, recommended that these internal rules be reviewed to avoid them being inadequate or otherwise unfit or unnecessarily burdensome when conducting internal HR investiga - tions. Non-compliance with internal rules or regulations implemented on a voluntary basis can cause the employer to become liable for non-compliance with statutory rules and regulations. Consequently, it is important to ensure that internal rules and/or regula - tions are aligned with statutory requirements. 5.3 Burden and Degree of Proof The burden of proof depends on the circumstances that are to be proven. The burden of proof generally lies with the person making any allegations or claims. Thus, employers are, for example, responsible for proving that an employee has committed sexual har - assment if it is to be used as a reason for termination – ie, to prove that there are objective reasons to ter - minate the employment. The employer must be able to prove that a circumstance has happened through the evidence that emerged during the investigation. 6. Conclusion and Outcome of an HR Internal Investigation 6.1 Deciding to End an HR Internal Investigation There are no explicit rules regarding when an inves - tigation should be concluded. However, the Whistle - blowing Act (2021:890), for example, requires that the reporting person be informed of the follow-up of a report within three months thereof. Furthermore, the Discrimination Act (2008:567) requires that an inves - tigation be conducted in an urgent manner.
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