Judicial epilogue for the “Macron scale”: the Court of Cassation validated on Wednesday May 11 this flagship and highly contested measure from the start of the first five-year term of the President of the Republic, which resulted in capping compensation for unfair dismissal to industrial tribunals.
The Court held that the scale was “not contrary” to Article 10 of Convention No. 158 of the International Labor Organization (ILO), which provides that in the event of unjustified dismissal the judge may order the payment of “adequate” compensation to the employee. It also ruled out the possibility of derogating “even on a case-by-case basis” from the application of the scale.
The “Macron scale” came into force in September 2017 by ordinance, despite strong opposition from the unions, and was validated by the Constitutional Council in 2018. It removed the floor of a minimum of six months’ compensation for employees with at least two years’ seniority, and capped at between one and twenty months’ gross salary, depending on seniority, damages due in the event of unfair dismissal (excluding dismissal for harassment or discrimination).
The plenary assembly of the Court of Cassation had already issued a favorable opinion on the scale in July 2019, but this opinion did not bind it, nor all the trial judges, and several courts of appeal had decided not to do so. free.
“The law must be the same for all”
The social chamber of the Court of Cassation, sitting in plenary session on March 31, examined the appeals lodged in four cases. In one of them, the most exemplary, the Paris Court of Appeal had dismissed the application of the scale in March 2021, while the sum provided for by the latter “barely covered half of the damage” suffered by the employee, whose seniority was less than four years.
At the March 31 hearing, the first Advocate General, Anne Berriat, invited the Court of Cassation to validate the reasoning of the Court of Appeal. Without calling into question the scale itself, it considered that the judges were entitled to assess “in concreto” (in a concrete manner with regard to each particular situation) whether the compensation received was “adequate”.
But for the Court of Cassation, this “in concreto” control would create “for litigants uncertainty about the applicable rule of law” and “would undermine the principle of equality of citizens before the law”.
Lawyer for one of the employers behind the appeals, Me François Pinatel welcomed this decision. “The law must be the same for all, whether it punishes or it protects. Control in concreto would have been a poison for the legal order,” he said on Twitter. CPME President François Asselin also welcomed a position that “will secure employers in the potential field of litigation, without taking anything away from employees”.
A “scandalous” decision
“Allowing a tightening and standardization of compensation for employees in the same situations, the scale (…) gives greater predictability to the employment relationship and has made it possible to develop alternatives to litigation, which ultimately contributes to a continuous increase in hirings on permanent contracts, ”said the Ministry of Labor in a press release.
The CGT, on the other hand, denounced a “scandalous” decision, and promised to “continue the fight against the scale and for the rights of employees”. FO, based on the findings of a recent report endorsed by the ILO Governing Body, said it was considering “calling (r) on the government to review its legislation”.
This report was added to the proceedings during the hearing at the end of March. Validating the principle of a scale, it invited “the government to examine at regular intervals, in consultation with the social partners, the terms of the compensation scheme” so as to ensure that it does indeed allow “adequate compensation for the damages suffered for wrongful dismissal”.