The Court estimated that the scale was “not contrary” to article 10 of Convention No. 158 of the International Labor Organization. The CGT denounced a “scandalous” decision.
Le Monde with AFP
Judicial Epilogue for the “Macron scale”: the Court of Cassation validated Wednesday May 11 This flagship and very contested measure from the beginning of the first five-year term of the president of the Republic, which led to capping the allowances for abusive dismissal to the industrial tribunal.
The Court estimated 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” entered into force in September 2017 by order, despite the lively opposition of the unions, and was validated by the Constitutional Council in 2018. It suppressed the minimum floor of Compensation for employees with at least two years of seniority, and capped between one and twenty months of gross salary, depending on seniority, damages due in the event of abusive dismissal (excluding dismissal for harassment or discrimination).
The plenary assembly of the Court of Cassation had already rendered in July 2019 a favorable opinion to the scale, but this opinion did not link it, nor all the judges on the merits, and several courses of appeal had decided to To get rid of it.
“The law must be the same for all”
The social chamber of the Court of Cassation, sitting in plenary training on March 31, examined the appeals trained in four cases. In one of them, the most exemplary, the Paris Court of Appeal had dismissed in March 2021 the application of the scale, while the sum provided by the latter “barely covered half of the damage” suffered by The employee, whose seniority was less than four years.
At the hearing of March 31, the first general lawyer, Anne Berriat, invited the Court of Cassation to validate the reasoning of the Court of Appeal. Without questioning the scale itself, she considered that the judges were founded to appreciate “in concreto” (in a concrete way with regard to each particular situation) if the perceived compensation was “adequate”.
But for the Court of Cassation, this control “in Concreto” would create “for litigants an uncertainty about the applicable rule of law” and “would undermine the principle of equality of citizens before the law”.
Lawyer of one of the employers at the origin of the appeals, Me François PINATEL welcomed this decision. “The law must be the same for everyone, either that it punishes, or that it protects. Control in Concreto would have been a poison for the legal order,” he said on Twitter. The president of the CPME François Asselin also praised a position which “will secure employers on the potential field of litigation, without removing anything from employees”.
a “scandalous” decision
“allowing a tightening and a standardization of compensation for employees in the same situations, the scale (…) gives greater predictability in the working relationship and has made it possible to develop alternatives to litigation, which in Fine contributes to a continuous increase in hiring on permanent contracts, “said the Ministry of Labor in a press release .
The CGT A, in contrast, denounced a “scandalous” decision, and promised to “continue the fight against the scale and for the rights of employees”. FO, based on the conclusions of a recent report approved by the ILO Board of Directors, said they consider “request (r) to the government to review its legislation”.
This report was paid to the debates during the hearing at the end of March. Validating the principle of a scale, he invited “the government to examine at regular intervals, in consultation with the social partners, the terms of the compensation system” in order to ensure that it allows “adequate compensation for damage suffered for abusive dismissal “.