The Impact of EU Fundamental Rights on the Employment Relationship
The purpose of this thesis is to assess the impact of the EU Charter of Fundamental Rights (the Charter) on the employment relationship. The Charter has long been praised for its inclusion of socio-economic rights alongside traditional civil and political rights. It might have been thought, therefore, that the Charter would be a particularly potent tool in the employment context, characterised as it is, by the continuous interaction between economic and social rights. However, to draw an analogy from George Orwell’s Animal Farm, although ‘all rights are equal, some rights are more equal than others’. Not only does the Charter distinguish between ‘rights’ and ‘principles’, but the EU Court of Justice (CJEU) seems actively to prioritise the Charter’s economic freedoms over the social rights. This thesis focuses on the consequences of this variable geometry for the regulation of the employment relationship. In particular, it examines the widening gap between contractual autonomy/business freedom as a fundamental right found in article 16 of the Charter and the employment rights contained in the Solidarity Title.
Of particular concern from an employee’s perspective is the decision of the CJEU in the case of Alemo-Herron and its progeny. In a series of highly deregulatory judgments, the CJEU has found that the employee-protective aim of the relevant legislation was incompatible with the employer’s freedom to conduct a business. At the same time, the CJEU has been reluctant to invoke the Charter’s employment rights to give an employee-friendly reading to legislation. The effect of this divergence for the employment relationship is explored in two ways. On a micro level, the thesis looks to the very practical or ‘day to day’ influence of fundamental rights at various stages in the life cycle of the employment contract. It addresses the relationship between individually agreed employment terms and fundamental rights sources. The macro level considers the broader question of the effect of fundamental rights on the EU’s (or the State’s) ability to regulate the employment relationship more generally. It is demonstrated that there may be a systemic problem with fundamental economic freedoms being prioritised over social rights, namely the employment provisions of the Charter.