Equal Treatment of Atypical Workers: A New Frontier for EU Law?

In order to address the specific issues of worker protection that are raised by non-standard forms of work, the European Union (EU) has adopted three measures concerning ?atypical? workers: a social partners? Agreement on part-time work;1 another social partners? Agreement on fixed-term work;2 and a Directive on temporary agency work (the ?agency work Directive?).3 To protect the atypical workers directly from abusive conditions of employment, and to protect workers with standard employment contracts indirectly from being undercut by atypical workers, each of these measures contains important provisions banning, in principle, discrimination against atypical workers as compared to workers with standard employment contracts. There is now extensive case-law of the EU?s Court of Justice on the non-discrimination provisions of the two social partners? Agreements. This case-law indicates that the principle of equal treatment of (or non-discrimination against) atypical workers forms part of the general principle of equality recognized by EU law, and is borrowing from aspects of the case-law of the Court of Justice relating to sex discrimination law in particular. EU legislation and Court of Justice case-law also indicate that, to a significant extent, atypical workers are guaranteed equal treatment as regards other employment rights and non-discrimination rights protected by EU law. This paper examines in turn the rules on non-discrimination against atypical workers, then the closely connected EU legislation on other aspects of employment and discrimination law (and the relevant case-law). It advocates a consistent and systemic approach to interpreting these rules, which would simultaneously bolster their social objectives and reduce undue legal complexity.