In France, in the event of dismissal without real and serious cause, the judge grants the employee who has been dismissed an indemnity to be paid by the employer ‘which compensates the prejudice resulting from the unjustified nature of the loss of employment’.
In 2017, an Ordinance (No. 2017-1387 of 22 September 2017) profoundly modified the compensation regime. Under what became known as the ‘Macron scale’ (barème Macron), judges were required to award compensation ranging between minimum and maximum amounts set in terms of number of months’ salary, depending on the employee’s seniority. For example: in a company with at least 11 employees, an employee with five years of seniority is entitled to compensation of a minimum of three months and a maximum of six months of gross salary.
This ‘Macron scale’, which does not apply in the event a dismissal is annulled, is intended to give ‘security and visibility on potential litigation’ so as not to dissuade small and medium-sized companies from hiring on permanent contracts. It was declared it should make it possible to ‘guarantee greater fairness also for employees, who, for an equivalent prejudice, currently benefit from damages ranging from simple to triple, or even quadruple, depending on the courts.’ (see here, in French).
This measure was judged to be in conformity with the French Constitution, but the question of whether it was compatible with several international texts (Article 24 of the European Social Charter, which gives workers the right to protection in cases of termination of employment and Article 10 of International Labour Organization Convention No. 158 on Termination of Employment) was debated.
In two judgments handed down on 11 May 2022 (n°21-14.490; n°21-15.247), the Court of Cassation ruled that:
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