Constitutionalization and EU Employment Law

H. Micklitz (ed.), 'The Constitutionalization of European Private Law' (OUP), 2014, Forthcoming

University of Leicester School of Law Research Paper No. 13-05

38 Pages Posted: 17 Sep 2013

See all articles by Mark Bell

Mark Bell

Trinity College Dublin; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: September 1, 2013

Abstract

This paper explores the process and effects of constitutionalization within EU employment law and reflects upon its impact on the substantive content of this area of law. The first section begins by examining how constitutionalization has evolved. It considers the tension between constitutionalization and the autonomy of parties to the contract of employment, as well as the reasons for the tendency to embody certain workers’ rights with a higher legal status. The second section looks at a specific example of constitutionalization within employment law: the case of EU equality law. This is an area where both the courts and the legislator have recognized that the legal norms engage fundamental principles of law, including the protection of human rights. This impacts upon the Court’s interpretation of equality legislation, with some recent decisions emphasizing that the constitutional rights and principles are superior and free-standing sources of law, which reach beyond the contents of the equality Directives. The final section of this chapter considers an area of employment law where the engagement of constitutional rights is more ambiguous: the personal scope of employment rights. Many employment rights are only extended to those deemed to be ‘workers’ or falling into associated categories. The person who is genuinely self-employed will, in most cases, not be entitled to the protection of employment law. This is an aspect of employment law that is not commonly associated with fundamental rights; the notion of a right to be treated as a worker is not expressly found in most fundamental rights instruments. This section explores whether the process of constitutionalization nevertheless has relevance or effect even where there is the absence of a clearly applicable fundamental social right.

Keywords: employment, constitutionalization, European Union, EU Charter of Fundamental Rights, equality, employee, worker, self-employed

Suggested Citation

Bell, Mark, Constitutionalization and EU Employment Law (September 1, 2013). H. Micklitz (ed.), 'The Constitutionalization of European Private Law' (OUP), 2014, Forthcoming, University of Leicester School of Law Research Paper No. 13-05, Available at SSRN: https://ssrn.com/abstract=2327094

Mark Bell (Contact Author)

Trinity College Dublin ( email )

School of Law
College Green
Dublin, 2
Ireland

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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