När statens anställda gör fel - Tillämpning och avvägning av straffrättsligt- och arbetsrättsligt ansvar i offentlig verksamhet

Sammanfattning: For state employees and those who exercise public authority, special liability rules apply in regards to professional misconduct. The essay focuses on investigating the application of disciplinary offence (breach of duty) in both criminal law and labour law. Disciplinary offence in criminal law is regulated in the Penal Code (brottsbalken) which applies when the violation committed is made within the exercise of public authority. Disciplinary offence in labour law is an administrative procedure which the authorities (as employers) may resort to when their employees fail to uphold employment obligations due to wrongful conduct. This offence requires an existing employment but not that the wrongful conduct is made within the exercise of public authority. The different liability regimes are intended to complement each other. The criminal liability shall be strictly reserved for the most serious attacks on civil interests. Disciplinary offence in labour law was originally a public judicial proceeding within the area of public law. As employment law in the Public sector evolved in order to resemble the private sector, the employee's obligations to the employer came to rest on contractual basis. In spite of this, matters concerning disciplinary offence are regulated in a special law, LOA, instead of being regulated in collective agreements. This solution is a result of the Instrument of Government (Regeringsformen) which requires that basic matters concerning state employees shall be regulated by law due to political democracy and civil interests. The primary purpose of disciplinary offence in labour law is to act as a safeguard to correct handling of public matters and interests. The secondary purpose is to ensure that employees comply with their obligations to the employer. Disciplinary offences in criminal law and labour law overlap in many cases, meaning that both liability regimes can be applied to cases of professional misconduct. Over the years, some criticisms emerged against this but in my opinion it does not represent a problem. It is clearly regulated by law which area of liability that is applicable in these cases. The criminal disciplinary offence has the sole purpose of protecting citizens against the mishandling of civil interests. It is limited to cases concerning exercise of public authority because they constitute the most drastic form of the state exercising power against individual citizens. Liability for disciplinary offence in criminal law is imposed by court and subject to public prosecution, which allows no room for arbitrary judgments. It is a secure legal proceeding. Disciplinary offence in labour law is an internal administrative action imposed by the authority. The employer decides which cases to investigate as disciplinary matters. If the authority’s Disciplinary Offence Board imposes a disciplinary punishment the employee has a possibility to appeal to court. What is remarkable is that there is no inspection of, or control over, which disciplinary matters the employer must investigate. There is a considerable scope for arbitrary judgment and the authority has the possibility to hide wrongful conducts. The primary purpose of disciplinary offence in labour law is pompous, it is meant to secure constitutionally guaranteed civil interests. The discrepancy between the purpose of disciplinary offence on the one hand and its actual application and the uncertain legal process on the other hand is remarkable and problematic.