By Nicolas Lepetit, Partner and Julie Ebran, associate.

By two highly anticipated judgments delivered on May 11, 2022, the Social Chamber of the Court of Cassation validated the scale of compensation in the event of dismissal without real and serious cause, known as the "Macron" scale, instituted in 2017 and codified in Article L. 1235-3 of the Labor Code .

The High Court thus puts an end to a legal saga which, for five years, had seen several courts free themselves from the limits set by this scale to compensate more generously employees unfairly dismissed, on a case-by-case basis.

The scale had been deemed constitutional in a decision of the Constitutional Council dated March 21, 2018 (No. 2018-761), but several Labor Courts and Courts of Appeal had dismissed its application on the basis on international conventions.

The European Social Charter has no direct effect…

In one of the cases (No. 21-15.247), the employee had invoked the benefit of Article 24 of the European Social Charter, which provides the right for workers dismissed without valid reason to receive compensation " adequate “, which the “Macron” scale would not allow in certain circumstances.

As it had already implicitly ruled with regard to annual flat rates in days (Cass. Soc. June 29, 2011, no. 09-71.107), the Court of Cassation considers that this Charter has no direct effect in a dispute between individuals, in particular because it creates obligations only for the signatory States and because the control of compliance with this standard is entrusted to the European Committee of Social Rights (CEDS), which has no jurisdictional character .

…unlike ILO Convention No. 158…

In the second case (No. 21-14.490), the Paris Court of Appeal had rejected the "Macron" scale on the basis, this time, of Article 10 of Convention No. 158 of the International Labor Organization (ILO), which also provides for the payment of compensation adequate » in the event of unjustified dismissal.

As the plenary assembly of the Court of Cassation had already ruled in two opinions delivered on July 17, 2019 (No. 19-70.010 and 19-70.011), the Social Chamber considers that, contrary to the European Social Charter, the Convention of the ILO has direct effect in domestic law, after noting that it recognizes the rights of workers, that its stipulations do not require any additional act to be defined and that its methods of application are left to the judge's appreciation.

…which however does not allow an assessment in concreto of the prejudice of the unfairly dismissed employee

It was then up to the Court of Cassation to define whether the control of the conventionality of the "Macron" scale with regard to Convention No. 158 of the ILO should be assessed in particular, as held by the Court of Appeal and supported by the employee, or in abstracto.

The Court of Cassation considers that the "Macron" scale meets the requirements set by the Governing Body of the ILO which, in 1997, had decided that the compensation is " adequate » when, on the one hand, it is sufficiently dissuasive to avoid unjustified dismissal and, on the other hand, it reasonably allows compensation for the unjustified loss of employment.

In the second judgment of May 11, 2022, the High Court notes that:

-       The deterrent nature of compensation is ensured by the mechanism for reimbursing unemployment benefits to Pôle Emploi, within the limit of six months (article L. 1235-4 of the Labor Code);

-       The seriousness of the fault of the employer is taken into account, since the application of the scale is excluded in the event of nullity of the dismissal for one of the causes defined by law: violation of a fundamental freedom, acts of moral or sexual harassment, discrimination, ignorance of legal protection (mandate of staff representative, pregnancy and maternity, accident at work and occupational disease , etc.) ; in this case, the judge must grant the employee who does not request his reinstatement an indemnity which cannot be less than six months' salary, without any ceiling (article L. 1235-3-1 of the Labor Code);

- Apart from cases of nullity, the "Macron" scale provides for compensation between minimum and maximum amounts varying according to the seniority of the employee and, indirectly, the amount of his salary, which allows the judge, in a individualized, to appreciate the concrete situation of the employee to determine the amount of compensation due, but between the floor and the ceiling fixed by the scale.

In conclusion, the Court of Cassation rules that the "Macron" scale is compatible with Article 10 of ILO Convention No. 158. She reject the appreciation in particular (which would have allowed the judge to deviate from the scale depending on the circumstances of the case), considering that such an assessment would disregard the principle of equality of citizens before the law, that of legal certainty, as well as the will of the legislator. In its explanatory note, the Court of Cassation notes that “ there would have been a great risk of replacing the legislator's scale with a judge's scale based on reasons inherent to the employee's person, without assuming the same legitimacy ».

The main findings

The merit of the two decisions rendered May 11, 2022 is, in accordance with the intentions of the legislator, tooffer greater predictability to employers and employees: the former know their risks when laying off workers, and the latter know their hope of gain when contesting this measure.

To escape the compensation cap, many employees, without waiting for these decisions, have placed themselves and will continue to place themselves on the ground of the nullity of the termination, sometimes in a justified way, sometimes in a more artificial way simply to circumvent the compensation restrictions. which have just been consecrated by the High Court.

Nicolas-Lepetit

Nicolas Lepetit

Partner

Prior to joining Ginestié Magellan Paley-Vincent, Nicolas Lepetit worked at Legrand Bursztein Beziz, avocats (LBBa) law firm, then worked at Bersay & Associés for more than 10 years and lastly as Of Counsel.