“The Macron Scale” of employment law damages approved by Supreme Court.

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“The Macron scale” has been approved by the French Supreme Court.  

After Emmanuel Macron’s election in 2017, a scale of damages, also known as the “Macron scale” (“barème Macron”), was introduced into French employment law.

The Macron scale provides that, in the case of unfair dismissal, an employee can only be awarded between a given minimum and maximum amount of damages, which will vary dependant on the size of the company and the employee’s seniority. The scale does not apply when the dismissal is void; for example, discriminatory or a breach of a fundamental freedom.

A legal battle in France

The Macron scale was much criticised and subject to a legal battle in France, after several French Employment Law Tribunals and Courts of Appeal had refused to apply it.

Some jurisdictions had ruled that the scale was valid “in abstracto”, however, the scale could also be rejected based on an “in concreto analysis” if the damages were deemed inadequate when compared to the employee’s actual situation. These rulings were based on Article 24 of the European Social Charter, which provides that all workers have the right to protection against dismissal, and on the International Labour Organisation (ILO) Convention 158, which provides that compensation must be “appropriate” in cases of unfair dismissal.

The final decision of the French Supreme Court

In May 2022 a judicial ruling by the French Supreme Court decided that the scale was indeed valid, that it could not be challenged and must be applied by lower jurisdictions (decision numbers 21-14.490 and 21-15.247).

The Supreme Court ruled that the scale was consistent with ILO convention 158 because it provides reasonable compensation to the employees and is a dissuasive sanction against employers. In addition, as it would create a breach of equal rights before the law, judges are not allowed to “reject applications of the scale based on an employee’s individual situation”. The Court decided that Article 24 of the European Social Charter had no direct effect between individuals and companies, and therefore could not be invoked in such litigations.

The European Committee of Social Rights is likely to rule that the French scale breaches the European Social Charter (just as it has already ruled for Finland and Italy). However, the French Supreme Court already recalled that the Committee’s decisions do not have a judicial impact in France.

Who is affected by the changes?

Employees are affected by these decisions as the damages they receive in cases of unfair dismissal will be determined by the scale.

Employers are also affected. They can now better anticipate the amount of damages owed in the course of an unfair dismissal litigation.

What action is required, and by when?

No specific action is required.

Risk/impact

The validation of the scale by the Supreme Court should bring more legal certainty to companies.

However, it can also have some negative impacts, especially the fact that some employees might try to avoid the application of the scale by:

• claiming that their dismissal is not only unfair but void;
• demanding damages on other grounds, such as the breach of the employer’s obligation to ensure employee health and safety, the training obligation, etc., as the prejudice resulting from such breach is distinct from the one resulting from unfair dismissal.

Consequently, legal disputes may become rarer but will be more complex than ever before, involving discussions not only about dismissals but also working time, harassment, discrimination, and more.

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This article was produced by Vincent Roche –Specialist lawyer for remuneration, profit-sharing schemes, and collective labour relations at Fidere Avocats, France, a CELIA Alliance member firm.

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