Validation of the indemnification scale applicable to unfair dismissals

In a decision dated May 11, 2022 (no. 21-14.490), the French Supreme Court (“Cour de cassation”) validated the application of article L. 1235-3 of the French Labor Code, known as the "Macron scale", providing for minimum and maximum compensation for unfair dismissal. 

The High Court recalled that Article 10 of the Convention° 158 of the International Labor Organization (ILO), which provides that when a dismissal is considered to be unfair, judges must order the payment of adequate compensation, may be invoked in litigation by employees in France. 

High Court also noted that: 
  • Article L. 1235-3-1 of the Labor Code provides that in the event of null and void dismissal, the Macron scale is set aside and judges must order compensation of at least six (6) months' wages ; 
  • Article L. 1235-4 of the French Labor Code provides that the judge must order the reimbursement by the defaulting employer of the indemnities paid by the French unemployment agency up to a limit of six (6) months' compensation. 

Thus, the High Court ruled that articles L. 1235-3, L. 1235-3-1 and L. 1235-4 of the French Labor Code provide for "adequate" compensation within the meaning of the ILO. 

Consequently, the High Court censored the Appeal Court which had rejected the application of the Macron scale on the grounds that it did not allow for an adequate and appropriate compensation of the prejudice suffered by the employee, whereas the judges had to evaluate the concrete prejudice of the employee between the maximum and minimum amounts provided for by the Macron scale.

It is necessary to emphasize that in a second decision of the same day (n° 21-14.247), the High Court also validated the application of the Macron scale regarding article 24 of the European Social Charter, which has no direct effect in French law.