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In Sickness and in Health? Illness and EU Employment Law

Mark Bell

Sickness is an everyday aspect of working life. For most, illness is short and transient, with no long-term consequences on their employment. Yet a significant minority of workers encounter longer spells of sickness absence. In 2007, 1.9% of workers in the EU were absent for at least one month due to a work-related health problem, while 0.7% of workers were absent for at least one month following an accident at work. Extended absence from work poses a challenge for the employment relationship. A tension arises between the protection of the worker, who will normally wish to retain their job in the hope of returning to work, and flexibility for the employer, who, in time, will typically wish to appoint a replacement. Added to this equation are the interests of the state, as those absent from work due to incapacity will often be entitled to social security. This paper will examine the role played by EU Employment Law in protecting those who find themselves off work due to sickness. It will consider two areas: EU disability law and the Working Time Directive to see how the Court of Justice has grappled with the competing interests of individuals, employers and the state. It will reflect on what the existing case-law reveals about the alternative frameworks that can be adopted when regulating sickness at work. In particular, it will compare the implications of pursuing approaches based on anti-discrimination or on social rights.

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