Work like any other but like no other: Labour rights for working prisoners in Sweden

I. Introduction

In a workshop located in a small community with around 2,200 inhabitants, 110 kilometres west of Stockholm, up to 110 workers are engaged in producing components for wooden houses for housing company X. Production in the workshop is high and steady. In 2022 the workshop sold products to X worth SEK 29 million. ¹ In the collective agreement applicable in the sector, the minimum wage is set at about SEK 150 an hour. The workers in this workshop, however, earn a mere SEK 13 an hour. They are incarcerated workers. This article seeks to explain the perceived rationale behind this state of affairs and to bring a human rights perspective into the picture and reflect on its implications.

In Sweden, there is no minimum wage legislation. Wages for 88% of workers are governed by collective agreement, and for the remainder, they are set by individual employment contracts. ² The lowest wage levels in collective agreements for adults were about SEK 19,000 in 2022, and the median wage was about SEK 34,200, ³ which corresponds to SEK 119 and SEK 214 per hour, respectively. Wages not set by collective agreement or employment contract are supposed to be ‘reasonable’. A reasonable wage is a wage in line with the level laid down in the sectoral collective agreement. ⁴ Incarcerated workers earn SEK 13 an hour in Sweden. They are not categorised as workers, however, and therefore are not covered by labour law or collective agreements. But the products of their work – goods and services – are either sold on the open market or used for the benefit of the Swedish Agency for Prisons and the Probation Service, as the services or goods do not have to be bought on the open market. Such low pay would be considered unreasonable for any other work. However, work has been a central aspect of serving time in Swedish prisons for a very long time. Over time, such work has been motivated and governed by different principles and aims, such as the work-first principle, meaning, i.e., that work is both a societal duty and a right, and the aim of disciplining the incarcerated workers for internal and external purposes (resocialisation). ⁵ The rehabilitative aspect of work has been emphasised. Proposals to raise the pay level have been rejected as being too expensive and counteracting the rehabilitative function of serving time in prison.

The article is structured as follows. The current regulation of work in prisons as well as the organisation of the work will be described. This is followed by an overview of how the legislator has looked upon the role of work in prisons since the Second World War, and how working conditions have been dealt with. The period is divided into four subperiods, each with specific characteristics. The present arguments against market-based remuneration will then be scrutinised, based on norms adopted within the Council of Europe. The article ends with a summary and conclusions.

2. How work in prison is organised and regulated

The Swedish Agency for Prisons and the Probation Service (PPS), as instructed by the Government, governs the operation of prisons and custody. Those instructions include the right to provide goods and services produced mainly by the inmates for a fee. The PPS may decide the amount of such fees and dispose of the income. ⁶ The work is organised by the PPS body, KRIMProd. ⁷ Some 50% of the costs associated with such work must be covered by the income it brings. ⁸ When setting prices, the PPS must take market prices into account and may not compete with similar operations on the outside. ⁹ However, questions have at times been raised whether clients of KRIMProd can gain an unfair advantage from the prices set. ¹⁰ The work primarily consists of assembly and packaging, and different forms of production such as in agricultural, textile and timber industries. It can also be service work, such as cleaning work done by inmates on the wing or work in the prison kitchen. ¹¹

According to the Act on Imprisonment, a prisoner in Sweden should be offered work or some other form of occupation, such as education, training, programmes for crime prevention or other forms of structured activity, for 30 to 40 hours a week. ¹² The inmates have both a right to work and/or to other forms of occupation and an obligation to participate in the assigned activities. ¹³ It is the PPS that decides what the assigned activity should be. If assigned work, it is mandatory to do it, and any refusal to work is sanctioned. ¹⁴ If the inmate repeatedly refuses to perform the assigned activity, it may lead to warnings and postponement of parole. ¹⁵ If the inmate is disruptive or refuses to follow orders and thereby prevents performance of the relevant activities, the assigned work is not regarded as such and will not be remunerated. ¹⁶

While working, incarcerated persons are not legally considered to be workers and therefore are not covered by labour law. As it is mandatory to perform an activity assigned by the PPS, the necessary voluntary component of an employment contract is considered to be lacking. ¹⁷ Only one labour-related law has been extended to cover prisoners: almost all provisions of the Act on Occupational Health and Safety also apply to prisoners’ work. Exempted from coverage are provisions on cooperation between employees and employers, such as the appointment of and tasks pertaining to occupational health and safety representatives, as well as a few provisions on work for minors. ¹⁸ Instead of extending the application of other labour laws to prisoners’ work, the PPS has adopted specific regulations on working conditions. For example, prisoners are not entitled to form or join trade unions in accordance with the Codetermination Act and, accordingly, are not entitled to corresponding collective rights, such as rights to negotiation, information and consultation, collective bargaining or industrial action. Instead, they can set up a prisoners’ council, at which they can discuss matters of common interest and consult with the prison management in a suitable manner. ¹⁹ The PPS regulation also regulates working time. Occupations may be assigned between 07.30 and 19.00, Monday to Friday, except holidays. ²⁰ If the occupation or other situation requires it, an inmate above 18 years of age may be assigned an occupation at other times. Travelling time and 30-minute breaks are included in the hours assigned. ²¹ A lunch break is not included. ²² An inmate has the right to two work-free days a week, unless specific circumstances dictate otherwise. ²³ Remuneration for work in prisons is SEK 13 an hour (corresponding to around £1). ²⁴ This has not changed since 2013. ²⁵ The pay can be higher if the inmate works more than 8 hours a day or more than 40 hours a week (SEK 19.5) and if the working time is outside standard hours (+ SEK 3 per hour). ²⁶ Work done in prisons is not eligible for pension rights or any other work-based social security rights. ²⁷ Laws and insurance against occupational injuries do not apply. Instead, prisoners are covered by public personnel injury protection. ²⁸ Compared with ordinary workers, it is obvious that, besides the very low remuneration, other outcomes of the work performed by incarcerated workers differ greatly from those associated with work performed by ordinary workers.

3. Prisoners as workers

4. How prisoners’ work should be regulated and why

In 2024, the Swedish Prison and Probation Service faces an extremely challenging time. New crime policies are expected to increase the number of prisoners from 9,000 to 27,000 in nine years, ¹²² but prisons are already overcrowded and the PPS lacks the personnel needed to cope. ¹²³ Among other things, this situation affects the capacity to provide prisoners with work (arbetsdriften) and the scope for organising meaningful, productive work. ¹²⁴ Nevertheless, the ambition remains to continue with worthwhile occupational activities. We will not touch on these wider challenges here, however, but rather focus on the principles governing remuneration for the work being done.

It is clear that people serving time in prison vary considerably in terms of their state of health. ¹²⁵ Some are fit for productive work, and some are not. One argument raised against paying a market-based wage is that, for several reasons, it is not appropriate to distinguish between the fit and the unfit in that way. ¹²⁶ There is also a risk that prisoners may choose occupations that do not benefit them as much as they might from a rehabilitative perspective. ¹²⁷ However, this argument raised against providing a higher wage to people in prison engaging in productive work is not persuasive. How to organise prisons in such a way as to overcome this challenge is primarily a practical problem. In what follows, the question of how people should be remunerated for work carried out is thus based on principle rather than a fixation with potential practical obstacles.

If a prisoner, for example, is working in a workshop under conditions similar to those in the outside labour market, it is hard to understand why their work should not be given the same value. If it is not, in particular in a situation in which the prisoner is forced to work, it must be considered to be part of the punishment itself. Under Swedish law, people can produce goods and services and sell them in two capacities, as either a worker or a contractor. Neither of these alternatives apply to incarcerated workers as the work they perform is not voluntary. Prisoners are obliged to engage in work if they are assigned it by the PPS. In normal circumstances, forced labour is a violation of human rights. ¹²⁸ However, there are two situations in which that is not the case, namely, prison work and military service. ¹²⁹ The fact that the labour is forced does not mean that it is not labour and so it entails a right to proper payment.

We shall use the international norms adopted within the framework of the Council of Europe to illustrate how human rights can provide guidance on the issue of remuneration. Virginia Mantouvalou has argued convincingly that ‘compelling people to work while also excluding them from labour rights is unjustified and has to be viewed as incompatible with human rights law’. ¹³⁰ Inspired by Mantouvalou's work, we shall analyse remuneration and work in Swedish prisons through a Council of Europe human rights lens. The Prison Rules adopted by the Council of Europe in their revised form from 2020 will be the starting point (the Prison Rules). ¹³¹ The Swedish Government claims that the point of departure with regard to prison conditions is that the law should comply with the relevant international obligations. The Prison Rules are referred to as international obligations of this kind. ¹³²

One fundamental point to note, when analysing work performed by incarcerated workers, is that, according to the Prison Rules, it should not be part of the punishment. ¹³³ According to the Prison Rules, the ‘conditions of such work shall conform to the standards … which apply to the outside community’. ¹³⁴ Such remuneration shall be ‘equitable’, ¹³⁵ and the working conditions in general should be as close to those prevailing in the outside world as possible. Prisons are also obliged to treat prisoners with dignity and humanity. ¹³⁶

The Council of Europe's Prison Rules are taken into consideration by the European Court of Human Rights (ECtHR) when applying the European Convention on Human Rights on prisoners. ¹³⁷ In Stummer v Austria (2011), the applicant claimed that the non-affiliation of working prisoners to the old-age pension system violated his Convention rights on the basis of Article 14 (on the prohibition of discrimination), taken in conjunction with Article 1 of Protocol No. 1 (on the right to peaceful enjoyment of possessions) and separately Article 4 (on the prohibition of slavery, servitude and forced and compulsory labour). ¹³⁸ The court held that ‘while the respondent State is required to keep the issue raised by the present case under review’, said State, even though it had not affiliated working prisoners to the old-age pension system to date, had not exceeded the margin of appreciation afforded to it in that matter. ¹³⁹ The wording in this case indicates that the rules governing work in prisons are still developing, and therefore the conclusions drawn from this case must be treated with caution. This fact was highlighted by the dissenting judges in Stummer and discussed by Mantouvalou. ¹⁴⁰

Dobrowolski v Poland (2018) was brought to the ECtHR by some prisoners who complained that the fact that they were earning only half of the statutory minimum wage for their work on the grounds that they were prisoners was discriminatory and constituted interference with their property rights. ¹⁴¹ The applicants relied on Article 14 on prohibition of discrimination and Article 1 of Protocol No. 1 to the Convention on the right to peaceful enjoyment of one's possessions. In this case, the Prison Rules were not mentioned. However, the Court came to the conclusion that the prisoners did not have any legitimate expectations to earn a higher wage. One reason for this was that the work was not compulsory, the complainants were aware of the financial conditions and had accepted them. ¹⁴² The situation therefore did not give rise to an issue under Article 1 of Protocol No. 1 under the Convention. ¹⁴³ They did not have a legal entitlement to a higher wage. In such cases, Article 14 cannot come into play and the case was rejected. ¹⁴⁴ It should be added that the Polish Constitutional Court had already found the wage unconstitutional, and therefore the law was amended. After the new law entered into force, working prisoners were entitled to the same statutory minimum wage as others. ¹⁴⁵

In Zhelyazkov v Bulgaria in 2012, regarding remuneration for incarcerated workers, the Court referred to its previous case law, according to which ‘Article 4 does not contain any provision concerning the remuneration of prisoners for their work’, and observed ‘that it had consistently rejected applications by prisoners claiming higher remuneration for their work’. ¹⁴⁶ The Court continued, however, that it was ‘mindful that there have been subsequent developments in attitudes to that issue, reflected in particular in the 1987 and 2006 European Prison Rules, which call for the equitable remuneration of the work of prisoners’, with the 2006 Rules adding ‘in all instances’. ¹⁴⁷ The Court explained that the Rules, and the modifications of their wording, reflect an evolving trend. ¹⁴⁸ In the particular case at hand, the work that was at issue before the Court was done two years before the 2006 Prison Rules were adopted and at that time it could not be considered ‘that there existed an unconditional obligation under Article 4 of the Convention to remunerate the work of all detainees in all circumstances’. ¹⁴⁹ The Court found this claim to be manifestly ill-founded. ¹⁵⁰ In a decision issued one year later in Floroiu v Romania, the Court repeated itself regarding the meaning of the European Prison Rules. ¹⁵¹ The applicant claimed a breach of Article 4 of the Convention. The applicant submitted that during the total period of 25 years that he had spent in different prisons, the management had forced him to perform various tasks which were very difficult, unpleasant and badly paid, without affiliating him to the old-age pension system, which he claimed to be in breach of both Article 4 and Article 1 of Protocol No. 1 to the Convention in conjunction with Article 14 of the Convention, as discriminatory in excluding prisoners who worked from being affiliated to the old-age pension system. ¹⁵² In this case, the claimant could choose between carrying out paid work or tasks involving the day-to-day running of the prison, which was unpaid work entitling them to a reduction of their sentence. Prisoners could choose between the two types of work after being informed of the conditions in each case. ¹⁵³ The Court observed that, in return for 114 days’ work, the applicant was given a 37-day reduction in the time remaining to be served, which the Court found to be a ‘significant’ reduction. The work carried out by the applicant was therefore not entirely unpaid, and this application was also considered manifestly ill-founded. ¹⁵⁴ This case law indicates that the Court has so far not put its foot down regarding how the European Prison Rules should be applied, at least not in the context of Article 4 and Article 1 of Protocol No. 1, either alone or in conjunction with Article 14. The threshold for legitimate expectations in the case law with regard to Article 1 Protocol 1, both alone and in conjunction with Article 14, is an additional challenging factor. We shall therefore bring another aspect, the question of dignity, into the picture and explore whether such a focus might be helpful. The right to reasonable remuneration for work is closely related to dignity. ¹⁵⁵

The dissenting judges in Stummer highlighted the role of respect for human dignity. ¹⁵⁶ Judge Tulken referred, in her individual dissenting opinion, to case law from the German Federal Constitutional Court connecting appropriate remuneration for prison work with the principle of human dignity. ¹⁵⁷ The German Federal Constitutional Court has since clarified that remuneration on the same level as Swedish remuneration for prison work violates the German constitutional right to dignity. ¹⁵⁸ Even though the principle of dignity is inherent in all the Convention's rights, it is particularly closely connected to Article 8 ECHR on the right to respect for private and family life. ¹⁵⁹ In its case law, the ECtHR reiterates how dignity, in different ways, affects the application of Article 8. ¹⁶⁰ The question is how Article 8 might come into play when examining whether the Swedish level of remuneration for working prisoners could be called into question from a human rights perspective. Article 8 has been found to cover a number of situations related to working life. Surveillance and control of employees can affect Article 8, but also issues related to access to employment and employment protection. ¹⁶¹ The argument is that ‘private life encompasses the right for an individual to form and develop relationships with other human beings’, including relationships of a professional nature. ¹⁶² There is no case law establishing the Court's view on the connection between working conditions and Article 8, but it is clear that the ECtHR draws inspiration from other international human rights standards when analysing a case and the legal environment that applies. ¹⁶³ As Article 8 covers rights to develop relations with others through professional activities, it would not be unreasonable to claim that such relations must be exercised with dignity.

Dignity is also one of the interests underpinning the existence of the International Labour Organization (ILO) and the adoption of international labour standards on working conditions. ¹⁶⁴ The aspect of dignity has been at the forefront in the most recent ILO declarations pointing the way forward for the ILO. It is, for example, part of the ILO's Centenary Declaration for the Future of Work. ¹⁶⁵ Isabelle Martin and Maude Choko have explored how different international and national courts and quasi-judicial bodies have connected minimum wages to dignity. ¹⁶⁶ The argument that ‘[a] just reward for work must thus compensate for the long-term costs for the human body that may arise from work’ is particularly persuasive in this context, as will be explained. ¹⁶⁷ As Davidov puts it, ‘[o]ne should not have to work for the benefit of another person without compensation. Similarly, it is quite obvious that one penny – to take an extreme example – cannot be considered compensation for a full working day’. ¹⁶⁸ ‘(R)espect for our dignity, for the value of our time and for the fact that we sell part of our selves, dictates a certain minimum level of compensation at work.’ ¹⁶⁹ Based on this argument, Article 8 could be activated to call into question the remuneration level for working prisoners, in particular if taken in conjunction with Article 14 ECHR on the prohibition of discrimination. The European Committee of Social Rights has invoked the principle of non-discrimination in this regard. According to Article 1.2 of the 1996 European Social Charter, the parties undertake to ‘to protect effectively the right of the worker to earn his living in an occupation freely entered upon’. In the interpretation of this provision, the European Committee of Social Rights has clarified, in relation to prison work, that ‘[p]risoners’ working conditions must be properly regulated, particularly if they are working, directly or indirectly, for employers other than the prison service. In accordance with the principle of non-discrimination, this regulation, which may be carried out by means of laws, regulations or agreements (particularly where companies act as subcontractors in prison workshops), must concern pay, hours and other working conditions and social protection (in the sphere of employment injury, unemployment, health care and old age pensions)’ [emphasis added]. ¹⁷⁰

We argued above that the right to a minimum wage could fall within the ambit of Article 8. When a substantive article is read in conjunction with Article 14, the connection to the substantive article can be weaker. ¹⁷¹ Invoking Article 14 also means that if a Member State provides for more far-reaching rights than it is obliged to according to the substantive article, depriving some people of that right without a legitimate reason could violate said article read in conjunction with Article 14. ¹⁷²

In Sweden, in the sectors related to work done in prisons, the minimum wage is set mainly by collective agreement. This level is also a benchmark for actors outside the collective agreement structure. For parties to an employment contract who have not reached agreement on a wage, the Labour Court uses the collective agreement level when looking for a reasonable level. ¹⁷³ The collective agreement level is also the minimum level required for labour migrants entering Sweden. ¹⁷⁴ This is a benchmark set by the state in that case. The equal strength of both parties negotiating these wages ensures that the set wage level fulfils the demands one might associate with dignity. ¹⁷⁵ This minimum level in collective agreements has a clear redistributive affect. One might assert that the profit generated by work should be distributed in such a way that preserves the dignity of the person doing the work. ¹⁷⁶ This argument is also relevant to work in prisons. When a working prisoner contributes to the PPS budget, there is no compelling reason why this profit should not be distributed between the prisoner and the PPS along the same lines as for workers on the outside. In the last PPS annual report, it transpired that its work operations covered 52% of its costs. ¹⁷⁷ But this is an average, and it is reasonable to assume that the productivity of incarcerated workers differs considerably. The work done for internal use does not form part of this calculation either. As the ILO committee of experts has clarified, ‘equal pay for work of equal value should prevail at all times’. ¹⁷⁸ This comment relates to interns and the issue of when it is reasonable to pay them the minimum wage. In the prison context, this could be interpreted to mean that prison workers who need support in order to be productive should be paid accordingly, and that those who do not need such support should be paid similarly to those in the open labour market who do not need support.

Article 14 of the ECHR prohibits discrimination on listed and unlisted grounds. ¹⁷⁹ Discrimination, according to Article 14, is a ‘difference in treatment of persons in analogous, or relatively similar situations’ and ‘based on an identifiable characteristic, or status’. ¹⁸⁰ The question that has to be raised is whether there has been a difference in treatment of persons in analogous or relevantly similar situations. If the answer is positive, it should be investigated whether it pursued a legitimate aim and the means employed were reasonably proportionate to the aim pursued. ¹⁸¹ Taking a prisoner working at Tillberga for company X for SEK 13 an hour and comparing them to a worker on the outside doing the same kind of job for SEK 150, it is difficult not to find that these two workers are in analogous or relatively similar situations, but treated differently on the basis of whether they are imprisoned or not. The ECtHR in Stummer established that being a prisoner is an aspect of personal status for the purpose of Article 14. ¹⁸² The next step is to discuss whether there is a legitimate aim in treating prisoners differently. The aim behind the current system put forward in the most recent legislative reforms is that the level of remuneration should not guide a prisoner's choice of occupation, as an inmate might be tempted to choose a better paid job instead of education. It was emphasised that many inmates were in great need of education and therefore it was crucial that payment for education and work should be the same. ¹⁸³ The cost aspect has also been raised several times. ¹⁸⁴

Is it a legitimate aim to suppress wages on the ground that inmates may otherwise be tempted to choose an occupation that would not be as beneficial as education for their rehabilitation, in the view of the PPS (which is also inherent in the argument it would be too costly to provide everyone with the same high remuneration)? This argument is in itself highly problematic, as it is based on the premise that inmates have lost all agency and the state has the right to control their lives to a far-reaching extent. This is difficult to reconcile with any aspect of dignity and therefore its legitimacy is highly questionable. On the other hand, the ECtHR has accepted the facilitation of the rehabilitation of juvenile delinquents as a legitimate aim. ¹⁸⁵ It is true that the circumstances in that case were very different, but it cannot be ruled out that the rehabilitative aim may be accepted as justified. The Prison Rules themselves also state that when prisoners take part in education or other programmes during working hours as part of their planned regime, they shall be remunerated as if they had been working. ¹⁸⁶ Applying the proportionality test, it might be asked whether the difference in treatment (as regards wages) strikes a fair balance between protection of the interests of the community and respect for the rights and freedoms of the individual. ¹⁸⁷ It is also the case that states have been given a wide margin of appreciation when considering remuneration for work in prisons. ¹⁸⁸ But it must also be taken into consideration that the evidence is sparse with regard to whether specific activities have rehabilitative functions and thus affect recidivism. ¹⁸⁹ The cost aspects may be taken into consideration, as may the practical problems involved in organising work for prisoners in a way that makes it possible to distinguish between different occupations. On the other hand, the point of departure for the Council of Europe's Prison Rules must be taken into account, namely, that remuneration should be ‘equitable’, and that not being paid appropriately for work done may deeply affect an individual's dignity. Depriving a prisoner of this particular aspect of dignity implies that the work is part of the punishment, which the Prison Rules deem unacceptable. It also seems that views on this particular issue have developed considerably. ¹⁹⁰ It therefore cannot be ruled out that the Swedish approach to remunerating working prisoners may be a violation of Article 8, read in conjunction with Article 14.

5. Summary and conclusions

The aim of this article is twofold: first, to explain the role the Swedish state has attributed to prison work since the Second World War and the arguments that have guided how prisoners’ working conditions are regulated; and second, to discuss whether the arguments against a market-based wage would survive a human rights analysis.

In contrast to the post-war ambition of normalising work in prisons and integrating it as far as possible with Swedish industry – in which work itself has a major value and incarcerated persons should contribute to society on the same terms as others – it has become a purely rehabilitative exercise with no expressed value for society at all. During the first 30 years after the Second World War, working conditions in prisons were developed to a certain extent to reflect work performed on the outside. During this period, the idea of a market-based wage also gained some momentum. However, since the middle of the 1970s proposals along these lines have been rejected on the basis of a lack of funds and, during the past 20 years, because it might interfere with the rehabilitative function of the chosen occupation. Turning to a human rights analysis, the European Court of Human Rights has to date been reluctant to integrate the Council of Europe's Prison Rules into its case law on prison labour. The margin of appreciation and perceived lack of consensus among the states on this issue have guided the Court. The revised 2006 Prison Rules have been in place for 18 years now, and constitutional courts across Europe have clarified their views on the issue of how incarcerated workers should be remunerated. The question of dignity plays a role here, and it has been argued that it would be beneficial to use Article 8 on the right to privacy in conjunction with Article 14 on the prohibition of discrimination to bring the ECHR case law closer to the Prison Rules. It also seems that the Swedish level of remuneration for incarcerated workers could be called into question as being incompatible with the obligations of Article 8 taken in conjunction with Article 14. The arguments the Swedish state has relied on to keep the level of remuneration down do not seem to be convincing, and reflect a deeply problematic attitude towards incarcerated persons in general. It is one thing for a person to lose their physical freedom when convicted of a crime, but quite another to lose their agency and dignity to the extent brought about by the Swedish remuneration system in prisons. Such a fundamental loss may be questionable from a human rights perspective and does not seem to befit a country whose constitution provides that the public power shall be exercised with respect for the equal worth of all and the liberty and dignity of the individual. ¹⁹¹