Rejection of the Macron scale in the event of dismissal deemed to be without real and serious cause
The rejection of the Macron scale in the event of dismissal deemed without real and serious cause
The “Barème Macron” (Macron Scale) is the scale introduced by the ordinances of September 2017, which sets the amount of compensation to be paid by employers in the event of dismissal judged by the industrial tribunals to be without real and serious cause. In other words, the latter can propose reinstatement of the employee in the company or, if this is not accepted, award the employee compensation payable by the employer within the limits of minimum and maximum amounts set by the said scale.
As a reminder, the Cour de cassation has issued two confirmatory opinions on the compatibility of the aforementioned scale with Convention no. 158 of the International Labour Organization, which is directly applicable in French law.
In this context, certain social divisions of the Courts of Appeal ruled that, while the said scale was in line with European law, it could nonetheless be set aside in the context of an in concreto examination. In other words, the courts can set it aside, on the one hand, if they are asked to do so and, on the other, if it is shown that the scale disproportionately infringes employees’ rights (Reims Court of Appeal, Social Division, 09/25/2019, no. RG 19/00003; Paris Court of Appeal, Division 3, 09/18/2019, no. RG 17/06676; Bourges Court of Appeal, Social Division, 11/6/2020, no. 19/00582).
Henceforth, it is up to the judges to check the proportionality of the capping with the employee’s personal situation.
In conclusion, the conventionality of the Macron scale is no longer open to debate, but it may be legitimately set aside by the trial judges, once the employee has asked the judges to check in practice the proportionality of his or her compensation for dismissal without real and serious cause with the prejudice suffered, in the event that reinstatement is impossible.
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