More than a year after the reform of French labor and employment law introduced by the Macron Ordinances dated September 22, 2017, the mandatory scale for the determination of damages in case of dismissal without real and serious cause continues to be a source of debate.
Four Labor Courts have recently found that this flagship measure of the Macron Ordinances is incompatible with international conventions.
The mandatory scale for the determination of damages in case of dismissal without real and serious cause introduced by Macron Ordinance n°2017-1387 is set forth in Article L. 1235-3 of the French Labor Code.
As explained in a previous article published in March 20181 that addressed inter alia the mandatory scale for the determination of damages, the judge is now required to apply this scale and to award damages, the minimum and maximum amounts of which are determined on the basis of the employee's seniority and the size of the company. The other criteria traditionally applied by judges to assess the scope of the harm suffered by the employee (e.g. age, family situation, difficulty in finding a new job, handicap) are not taken into account to set the minimum and maximum amounts of damages that may be awarded.
While the French Constitutional Council endorsed the scale in a decision dated March 21, 20182, the question of its compatibility with international conventions still remained unanswered.
It is in this context that the Labor Courts of Troyes, Amiens, Lyon and Grenoble have recently set aside the scale on the ground that it was not compatible with international conventions.
These Labor Courts mainly rely on two international conventions to justify their decision: Article 10 of Convention n°158 of the International Labour Organization ("ILO") and Article 24 of the European Social Charter.
Article 10 of ILO's Convention n°158 stipulates as follows: "If the bodies referred to in Article 8 of this Convention 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."
Similarly, Article 24 of the European Social Charter also recalls that "With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of...