The Macron Scale (“Barème Macron”) meets Labor Courts resistance

Employees are trying to avoid the capping of unfair dismissal damage awards provided in the Labor Code (the “Macron Scale”) through various arguments which have been well received by Labor judges.

On 10 September 2018, the Labor Court of Saint-Quentin overthrew the Macron Scale (cf our social letter n°121 (October 2018- http://daempartners.com/wp-content/uploads/2018/10/Lettre-DaeM-n°121.pdf), as well as the Labor Court of Troyes (decision dated 13 September 2018) and Amiens (decision dated 19 December 2018). Recently, the Labor Court of Lyon in a decision dated 21 December 2018, disregarded the Macron Scale, to uncap the damages awarded to an unfairly dismissed employee.

The Labor Court of Le Mans, on the contrary, confirmed that the Scale complies with the ILO Convention

n°158 and considered that the European Social Chart was not directly applicable.

The Labor Court decisions are thus very disparate views on the issue.

To avoid applying the Scale, judges ground their decision on article 10 of the ILO Convention n°158 and/or on article 24 of the European Social Chart.

Pursuant to article 10 of the ILO Convention, regarding dismissals, ratified by France on 16 March 1989, where Courts:

« find that termination is unjustified and if they are not empowered or do not find it practicable, in accordance with national law and practice, to declare the termination invalid and/or order or propose reinstatement of the worker, they shall be empowered to order payment of adequate compensation or such other relief as may be deemed appropriate ».

Pursuant to article 24 of the European Social Chart dated 3 May 1996, ratified by France on 7 May 1999:

« With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment, the Parties undertake to recognise [...] the right of workers whose employment is terminated without a valid reason to adequate compensation or other appropriate relief ».

Will Courts of Appeal follow the rebellion?

The uncertainty may last a few years, as only the Court of Cassation may ultimately decide and dispel prevailing doubts on the direct applicability of article 24 of the European Social Chart and/or article 10 of the ILO Convention n°158.

An adverse ruling by the Labor Courts is often a life-threat for small and medium companies…

 

European Social Chart: https://rm.coe.int/168007cf93

ILO  Convention n°158: https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C158