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

Published date01 September 2015
Date01 September 2015
Sickness Absence and the Court of
Justice: Examining the Role of
Fundamental Rights in EU
Employment Law
Mark Bell*
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 justif‌ica-
tions 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 indi-
cate 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.
I Introduction
Few people will be fortunate enough not to encounter an illness that, at some point,
interferes with their ability to work. In many cases, illnesses are transitory events
that have no lasting impact on working life. Yet it is not unusual for some workers
to experience prolonged absence from work or longer term effects on working capac-
ity due to ill-health. The Organisation for Economic Co-operation and Development
found that in many European states between 1% and 5% of full-time employees
have been absent for at least one day during a working week due to sickness or
temporary disability.1The impact of sickness absence on the rights and duties f‌lowing
from theemployment relationship is complex and differs according to national
* Regius Professor of Laws, Trinity College Dublin, Dublin, Ireland. I am very grateful for comments
received on a draft version of this article from Lucy Vickers, the anonymous reviewers and from the
participants of research seminars in the University of Leicester and Trinity College Dublin, as well as the
UACES 44th Annual Conference, University College Cork. The research for this article was completed
during a period of study leave granted by the University of Leicester.
1OECD, ‘Sickness, Disability and Work: Breaking the Barriers. A Synthesis of Findings across OECD
Countries’ (OECD, 2010) 63. See also I. Livanos and A. Zangelidis, ‘Unemployment, Labor Market
Flexibility, and Absenteeism: A Pan-European Study’ (2013) 52 Industrial Relations 492, 493.
© 2015 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
European Law Journal, Vol. 21, No. 5, September 2015, pp. 641–656.
law.2It entails an intersection with social security systems, and the distribution of
public/private responsibilities tends to ref‌lect the historical evolution of diverse
models of national social policy.3
Although the response of management to worker ill-health, and the role that law
plays in circumscribing this, is a key issue in the workplace, it is one where the EU has
traditionally had limited impact. Looking at the competences conferred by the Treaty
on the Functioning of the European Union (TFEU), the closest connection lies in
Article 153(1), which provides that the Union shall ‘support and complement the
activities of the Member States’ in various aspects of employment, including
‘improvement in particular of the working environment to protect workers’ health
and safety’. This has been the foundation for the extensive harmonisation of law
relating to occupational safety and health. It is primarily oriented towards protecting
workers from risks to their health, rather than dealing with the consequences of those
risks materialising. For example, EU law imposes duties on employers to conduct risk
assessments and to inform and consult workers’ representatives about safety within
the enterprise.4It steers clear of addressing the consequences for the employment
relationship of sickness absence. Moreover, EU health and safety law is focused on
preventing occupational causes of ill-health, whereas sickness absence can also arise
due to factors unrelated to work.
It follows that EU law does not explicitly regulate a broad range of issues relating
to ill-health and work. The Court of Justice of the EU (CJEU) has pointed out that
‘the right to sick leave and the conditions for exercise of that right are not, as
Community law now stands, governed by that law’.5There are no duties in EU law
for an employer to provide occupational sick pay, nor has EU law normally been
involved with procedures for the dismissal of those who are incapable of returning to
work. Nevertheless, this article argues that recent CJEU case-law has shown that
other aspects of EU employment law are having effects that spill over into the
regulation of sickness absence. It considers two such examples: the right to paid
annual leave under the Working Time Directive and the protection from disability
discrimination under the Employment Equality Directive. These case studies illustrate
ways in which EU employment law is placing new obligations on employers when
confronted with sickness absence. The article ref‌lects on the justif‌ications that the
Court has advanced to support these interventions and what has shaped the (shifting)
direction of the case-law. To this end, it considers the Court’s approach to interpret-
ing employment legislation, and in particular the role assigned to fundamental rights.
It examines the way in which fundamental rights discourse is used by the Court in the
case studies as a basis for enhancing worker protection, but also the limits of this
rationale as a route to extending the reach of employment law. In order to place this
2See further F. Pennings, ‘The Responsibility of the Modern Enterprise in the Reduction of Sickness and
the Promotion of Reintegration of Disabled Workers’, in F. Pennings, Y. Konijn and A. Veldman (eds),
Social Responsibility in Labour Relations: European and Comparative Perspectives (Wolters Kluwer,
2008), at 223.
3I. Mares, ‘Firms and the Welfare State: When, Why, and How Does Social Policy Matter to Employ-
ers?’, in P. Hall and D. Soskice (eds), Varieties of Capitalism: The Institutional Foundations of Compara-
tive Advantage (Oxford University Press, 2001), at 184.
4See further B. Valdés de la Vega, ‘Occupational Health and Safety: An EU Law Perspective’, in E. Ales
(ed), Health and Safety at Work: European and Comparative Perspective (Wolters Kluwer, 2013), at 1, 15.
5Joined Cases C-350/06, Schultz-Hoff v. Deutsche Rentenversicherung Bund; and C-520/06, Stringer v.
Her Majesty’s Revenue and Customs [2010] ECR I-179, para 27.
European Law Journal
© 2015 John Wiley & Sons Ltd.
Volume 21

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