Sickness Absence and the Court of Justice: Examining the Role of Fundamental Rights in EU Employment Law

Abstract

Being absent from work due to sickness is a critical issue for individuals and their employers, but it has traditionally fallen outside the scope of EU employment legislation. This article argues that this is changing; it examines case-law under the Working Time and Employment Equality Directives. The article considers the justifications that the Court of Justice has advanced to explain this expansion in EU employment law. It finds that the Court has, at times, invoked fundamental social rights as a basis for interpreting employment legislation in a manner favourable to workers. Yet the way in which the Court deploys rights-based reasoning can be difficult to anticipate, not least the countervailing weight attached to the interests of employers. The case studies indicate that fundamental rights discourse offers a possible foundation for more extensive readings of employment legislation, but it is not a simple ‘trump card’ for advocates of stronger worker protection