WRETLUND v. SWEDEN
Inadmissible
Nicolas Bratza
The applicant, Ms Inga-Lill Wretlund, is a Swedish national who was born in 1958 and lives in Påskallavik. She was represented before the Court by Mr B. Villner, a trade union lawyer practising in Stockholm. The respondent Government were represented by Ms I. Kalmerborn, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is since 1986 employed as an office cleaner at a nuclear plant in Oskarshamn. Assigned to clean the offices at the plant, she is not working in an area where she might be subjected to radioactivity and is thus not obliged to undergo any radiological examinations under the security rules for nuclear plants in Sweden. The applicant is a member of the Swedish Electricians' Union (Svenska elektrikerförbundet) which has approximately 170 members working at the nuclear plant. Her employer – OKG Aktiebolag (hereinafter “OKG”), a privately owned limited liability company that owns the plant – is a member of the Energy Companies' Employers Confederation (Energiföretagens Arbetsgivareförening). The central collective agreement in force between the two organisations concerned (Kraftverksavtalet) does not provide for any drug or alcohol tests on the employees. In 1991, following discussions within a working group which included the OKG's medical doctor and representatives of the company and the four trade unions represented at the company, a drug policy programme was agreed upon which stipulated, inter alia, that job applicants should undergo a drug test in connection with the health examination before they could be employed. In the autumn of 1993 the working group proposed that those already employed should also undergo tests. OKG and three of the four trade unions then concluded local collective agreements which introduced at the plant a drug policy programme involving compulsory drug and alcohol tests for all the members of those unions. OKG wished to conclude a similar agreement with the applicant's trade union but the union declared on 20 December 1993 that it did not accept it. Nevertheless, in 1994 OKG decided that also members of the applicant's trade union should be subjected to drug and alcohol tests. As from March 1995 contractors' employees who perform work for OKG are also tested. Further negotiations on this issue with the applicant's union, held at local and central level, were fruitless and terminated at the end of 1995. The drug policy programme, which was replaced by a new, essentially identical, programme in December 1995 and which is contained in an instruction issued by OKG (Vår syn på alkohol och narkotika), involves the taking of urine samples from the employees every third year. The tests aim to detect the use of both drugs and alcohol but the drug part of the tests concerns only the presence of cannabis. The employee is notified about a week in advance of the test, which consists of delivering a urine sample in private. The sample is taken care of by an occupational health nurse working under instructions from the hospital at Huddinge and the sample is sent to a laboratory at the hospital for analysis. The employee should state on a form, inter alia, what kind of medication, if any, he or she has taken during the preceding week. He or she further signs a referral, thereby consenting to the testing and giving permission to the laboratory to inform the occupational health service of the result. By signing a special form, the employee may also consent to his or her immediate supervisor being informed. If a test is positive, the employee will be requested to talk to the company doctor who shall provide information on possible rehabilitation measures, which may include detoxification and transfer to other duties, if the latter is motivated by reasons of security and safety. The last consequence of continued drug or alcohol abuse may be dismissal. According to the programme, a refusal to undergo the test is treated as a positive test result. However, if an employee refuses to participate in the testing for reasons of principle and there are no signs of drug abuse, the employee will not be dismissed. The OKG staff was informed of the programme, both orally and in writing, through an extensive information campaign. In 1996 the Swedish Electricians' Union introduced proceedings against OKG and the Energy Companies' Employers Confederation before the Labour Court (Arbetsdomstolen) seeking a declaratory judgment that the applicant was not obliged to participate in the drug and alcohol tests. The trade union claimed that OKG had no right to require that the applicant undergo such tests. The union argued that the tests were in breach of Article 8 of the Convention, the collective agreement in force and the Swedish Secrecy Act (Sekretesslagen; 1980:100). Should the tests be considered not to be in breach of the collective agreement, the union argued, in the alternative, that the matter must be considered as unregulated. Furthermore, the union held that the individual employment contract between OKG and the applicant did not provide for such tests. Also, the union alleged that the tests were unjustified having regard to the applicant's tasks at the nuclear plant. By a judgment of 26 August 1998 the Labour Court found that the applicant was obliged to participate in the drug test but not in the alcohol test. The Court first noted that there was no legislation specifically regulating the right of employers to submit employees to drug tests against their will. It referred, however, to an earlier case before the Labour Court (AD 1991 no. 45) which concerned the question whether two employees in a company that assembled scaffolding had been lawfully dismissed due to their refusal to submit to drug testing. In that case, the court had found that the employees had been obliged under the individual employment contracts to participate in the testing. In the case at hand, the Labour Court found that a general prohibition against drug testing could not be derived from the right to respect for family life under Article 8 of the Convention. It stated, however, that in certain circumstances such testing might be incompatible with the Convention and therefore contravene Swedish law. Circumstances of relevance were, for example, the employer's interest in carrying out drug tests, the degree of interference with the individual's integrity and the way in which the testing was performed. The court further considered that the tests in question were naturally connected with the type of business conducted by OKG and, consequently, that the right to order employees to undergo such tests could be seen as part of the company's right to manage and organise the work according to the central collective agreement, Kraftverksavtalet. Nevertheless, an employee not bound by a collective agreement on drug testing could not be obliged to submit to such testing without limitations. In balancing the interests of the company and the individual, the Labour Court first noted that OKG was running a nuclear power plant which entailed certain risks specific to this activity and which was subjected to far-reaching demands on security imposed by the relevant public authorities. The National Nuclear Power Inspectorate (Statens kärnkraftsinspektion) had expressed the necessity of conducting drug tests as a means of upholding a drug-free environment at such plants. Moreover, the Labour Court noted that OKG was under an obligation, under the Work Environment Act (Arbetsmiljölagen, 1977:1160) to take measures preventing illnesses and accidents at work. The Labour Court thus concluded that OKG had a strong interest to carry out the tests in question in order to maintain a drug-free work environment. It observed that drug testing was made at all the Swedish nuclear power plants. Furthermore, according to the court, it would be impractical to make a distinction between employees working in areas where there were special security hazards and other employees. It was moreover possible that employees would be moved from a workplace with little risk to another one where there was a specific risk. In addition, having regard to the character of OKG's business, there was an interest in showing to the outside world that the nuclear power plant was absolutely drug-free. Turning to the interests of the individual, the court had regard to the procedures for the tests and considered that the possible infringement of the test procedures as such on the individual's integrity was of very little significance. It further noted that the fact that there did not appear to be any drug abuse at OKG did not as such make the testing unnecessary; on the contrary, in the court's view, a drug policy programme would be considerably less credible if no tests were made and, moreover, the knowledge that tests were made had a preventive effect. Having regard to the foregoing, the Labour Court found that the applicant was obliged to submit to the drug test. It considered, however, that there was a fundamental difference between the use of drugs and the use of alcohol, in that the former was illegal whereas the latter was legal and socially accepted. As a positive test result would lead to an investigation into the individual's use of alcohol – a highly sensitive matter in terms of personal integrity – and as, furthermore, there were some doubts as to the accuracy of the alcohol test, the court concluded that the applicant could not be obliged to take the alcohol test. No appeal lay against the judgment of the Labour Court. It is a long-standing tradition in Sweden that labour market issues such as wages and other working conditions are dealt with by the parties acting on that market with little interference from public authorities. In 1906-07 the Swedish Trade Union Confederation (Landsorganisationen) and the Swedish Employers' Confederation (Svenska arbetsgivareföreningen) concluded an agreement, the so-called December Compromise (decemberkompromissen), whereby the trade unions accepted, inter alia, the employers' right to manage and organise the work and the employers recognised the workers' freedom of association. The agreement has been reflected in many collective agreements since. In an early judgment (AD 1930 no. 52), the Labour Court considered the employers' right to manage and organise the work as forming a general legal principle. This principle has been confirmed in subsequent judgments by the Labour Court (see, inter alia, AD 1964 no. 5 and AD 1983 no. 46). The right to manage and organise the work remains with the employer, unless otherwise stipulated in collective or individual agreements or in legislation. This right is, however, not unlimited. It must not be exercised in contravention of the law or “good labour market practice” (“god sed på arbetsmarknaden”). The Labour Court has interpreted the notion of “good labour market practice” in a large number of judgments (see, inter alia, AD 1997 no. 74). It follows from the established case-law of the Labour Court that an employer may have the right to carry out control measures in relation to the employees. Such a right may be based on collective agreements, individual employment contracts or on the employer's right to manage and organise the work. Examples of control measures are work-time studies, physical searches (AD 1943 no. 77) and drug and alcohol tests (AD 1991 no. 45 and AD 2001 no. 3). An employer may not exercise his right to apply control measures in an arbitrary, unreasonable or inappropriate manner. The employer must make sure that such measures are carried out in conformity with both legal provisions and “good labour market practice”. In assessing whether a control measure decided by the employer meets the standards of “good practice”, the Labour Court has applied a principle of proportionality, balancing the employer's interest in using the measure in question and the employee's interest in protecting his or her integrity. Rules on dismissal from employment are contained in the Employment Protection Act (Lagen om anställningsskydd, 1982:80). A collective agreement or an employment contract is invalid to the extent that it excludes or limits employees' rights under the Act. Pursuant to section 7 of the Act, dismissal of an employee must be based on objective grounds (saklig grund). Such grounds do not exist where it may reasonably be required that the employer provide other work for the employee. There is an extensive body of case-law from the Labour Court dealing with the interpretation of the requirement of objective grounds. Two cases concern employees who were dismissed because of their refusal to participate in drug testing. In both cases, the Labour Court found, in balancing the opposing interests involved, that the employer's request that the employees undergo a drug test was justified. In one of the cases (AD 1991 no. 45) the court concluded, however, that the requirement of objective grounds for dismissal was not satisfied. In the other case (AD 2001 no. 3) it reached the opposite conclusion. That case concerned a person, employed as a school help, who was suspected of having relapsed into drug abuse and was dismissed after repeatedly refusing to comply with the employer's request that he submit to a drug test. The Nuclear Activities Act (Lagen om kärnteknisk verksamhet, 1984:3) contains basic provisions on safety in connection with nuclear activities, such as the operation of nuclear power reactors. Nuclear activities require a licence and the licence holder has full responsibility for the safe operation of the facility. A licence may be revoked if safety conditions or safety regulations are not complied with. The National Nuclear Power Inspectorate (Statens kärnkraftsinspektion) supervises all nuclear activities in Sweden. It has laid down basic regulations on nuclear safety (SKIFS 1998:1) which entered into force after the Labour Court's judgment in the present case. In recommendations accompanying these regulations, it underlines that there should be a documented policy for dealing with different factors which could affect staff performance in a way that is relevant to safety and security, for example alcohol and drugs. Such a policy should include directions on, inter alia, the testing of personnel and the action to be taken when someone is found to be under the influence of alcohol or drugs or in the event of abuse. Provisions on professional secrecy for medical staff working in the private sector were, at the material time, to be found in the Act on Duties for Personnel in the Health and Medical Service (Lagen om åligganden för personal inom hälso- och sjukvården, 1994:953). The obligation to observe secrecy does not usually apply if the individual concerned consents to information being disclosed. Thus, with the individual's consent, information may be submitted to another individual, for example his or her employer. A committee appointed by the Government in 1994 to look into the issue of medical testing in the workplace submitted its report in April 1996 (SOU 1996:63) in which it found no grounds for proposing legislation concerning drug tests in the workplace. It considered that this issue should be solved by the parties on the labour market. It recommended that, where drug tests were to be applied, there should be a written drug policy, including an action programme, drawn up jointly by the employers and employees.