New Legislation | In brief: The debate rages on: Is the Macron Indemnity scale for Unfair Dismissals valid?

Published on : 06/11/2019 06 novembre Nov. 2019
One of the Macron Orders of September 2017, which gave way to a law in 2018, established a compensation scale in the event of termination of employment without real and serious cause, providing for a minimum and maximum amount of compensation, adjusted according to the employee’s length of service in the company. This scale has, since the beginning, sparked controversy.
 
On July of this year, the French Supreme Court (“Cour de Cassation”) handed down two non-binding opinions on the matter, stating that this indemnification scale is consistent with the obligations and rights set out in the ILO Convention 158 and provides adequate compensation. It also said the Article 24 of the European Social Charter, which was raised in the legal arguments challenging the scale, is not of direct application in a dispute between private persons.
 
Last month, the Court of appeals of Reims ruled on the application of the scale.
 
The Court of Reims offered additional precisions that are important in the saga surrounding the validity of the scale and its application by judges.
 
The Court ruled that even in the presence of an instrument deemed compliant (with the constitution and international norms), an employee may ask the judge to carry out a review of the application that may be made of the scale, in light of the particular circumstances of a case. 
 
Indeed, if these particular circumstances cause the application to result in a disproportionate infringement of the employee's rights, then the court says that a judge is authorized to exclude the application of the grid and its capped indemnifications, in order to award compensation in an amount he freely determines.
 
Most recently, the Court of Appeals of Paris took a similar approach consisting in checking whether the grid did offer, in concreto, an appropriate indemnification in light of the circumstances at-hand.
 
The Supreme Court is expected to provide a binding opinion on the matter in the coming months, as the litigation surrounding the grid works its way up through the levels of jurisdiction.
 
Until then, the debates around the Macron indemnity scale continue to rage on.

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