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Compensation for industrial tribunals: the Macron scale definitively reinforced

VS’is a victory for Emmanuel Macron, who has just been re-elected. The social chamber of the Court of Cassation confirmed, Wednesday, May 11, that the flagship measure of its first five-year term in the economic and social field, the scale governing the compensation which can be granted to employees in the event of unfair dismissal, should apply.

The social chamber of the highest court of the judiciary considers that the scale is not contrary to article 10 of convention n° 158 of the International Labor Organization (ILO), as argued by the unions. “The French judge cannot rule out, even on a case-by-case basis, the application of the scale with regard to this international convention”, writes the court in a press release, which should discourage multiple appeals.

Entering into force in September 2017, this measure, which sets a floor and a ceiling of compensation according to the seniority of the employee dismissed “without real and serious cause”, is supposed to eliminate “the fear of hiring” often expressed by the bosses of small and medium-sized enterprises.

The legal debates focused on Article 10 of ILO Convention No. 158, which provides that the judge must be able to order the payment of “adequate compensation” to the employee, only in the event of “unjustified dismissal “. The Court of Cassation underlined that, “according to the Governing Body of the ILO, one of the characteristics of an ‘adequate’ indemnity is that the prospect of its payment sufficiently dissuades the employer from dismissal without real and serious cause “. However, “when a dismissal is without real and serious cause, the Labor Code requires the judge to order the employer ex officio to reimburse the unemployment insurance organizations for up to six months of compensation. Thus, she believes, this mechanism tends to dissuade the employer from dismissal without real and serious cause”.

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Avoid “uncertainty about the applicable rule of law”

The court also noted that in the event of a “null” dismissal, i.e. pronounced in violation of a fundamental freedom, in connection with a situation of moral or sexual harassment, or decided in a discriminatory manner, the compensation is not subject to the scale. “Thus, the scale not only takes into account the seniority of the employee and his level of remuneration, but its application depends on the seriousness of the fault committed by the employer. »

Contrary to what the first Advocate General, Anne Berriat, pleaded before the plenary session of the social chamber of the Court of Cassation on March 31, the latter dismisses the control of conventionality in concrete terms (in concrete terms depending on each particular situation) by each industrial tribunal or court of appeal with the aim of deciding whether the compensation received by a particular employee is really proportionate to his situation. This “would create uncertainty for litigants about the applicable rule of law, which would be likely to change depending on individual circumstances and their assessment by the judges”, justifies the court in its judgment. For her, this “would undermine the principle of equality of citizens before the law, guaranteed in article 6 of the Declaration of the Rights of Man of 1789”.

READ ALSOThe Macron scale validated by the plenary assembly of the Court of Cassation

It’s the end of a long legal soap opera. In July 2019, the plenary assembly of the Court of Cassation had already issued a favorable opinion on the scale, judging that it was compatible not only with Article 24 of the European Social Charter, but also with Convention No. 158 of the ILO. But this simple “notice” did not really bind the trial judges. In fact, several courts of appeal had then decided to free themselves from it.

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