One of the Macron Orders of September 2017 established a compensation scale in the event of termination of employment without real and serious cause, providing for a minimum and maximum amount of compensation, adjusted according to the employee’s length of service in the company. This scale has, since the beginning, sparked controversy.
Following the opinion of the Supreme Court of 17 July, which held that the scale is consistent with the ILO Convention 158 and Article 24 of the European Social Charter, and provides adequate compensation, the Reims Court of Appeal recently ruled on the application of the scale.
This is the first appellate court to rule since the opinion of the Court of Cassation of 17 July. The Reims Court of Appeal confirmed the position of the Supreme Court: the scale is validated in the light of international texts. However, it admits that an employee can argue that the application of a ceiling in his particular case disproportionately affects his rights. It states that, even in the presence of an instrument deemed compliant, an employee may ask the judge to carry out a review of the application that may be made of the scale in the particular circumstances of a case. And if these particular circumstances cause the application to result in a disproportionate infringement of the employee’s rights, the judge is authorised to exclude the application of the ceiling, to award compensation in an amount he/she freely determines.
The court therefore states that it is possible for the judge, in certain cases, to rule out the application of the scale. On this point, the Court of Appeal departs from the opinion of the French Supreme Court. Thus, the debates around the Macron indemnity scale continue to rage on…