Since being submitted to the French Council of State, the “El Khomri Bill” has been the subject of heated public debate, giving rise to some initial adjustments in response to the criticisms raised.

An amended submission has been made to the Council of State.

  • Indicative scale of labor court damages

In its previous version, the Bill provided for a cap on labor court damage awards (excluding “PSE” job protection plans) if the dismissal was considered as deprived of any genuine and serious cause. The cap has been eliminated. On the other hand, the bill still provides for an indicative scale of damages, derived from the “Macron Act” (no. 2015-990) of 6 August 2015 for growth, business and equal economic opportunity.

The criticism of the scale initially contemplated in the “Labor Bill” – that the legislator should instead favor the application of a deduction at source on businesses contemplating a legally questionable dismissal – will therefore be silenced. The scale should be set out in a future decree.

Other adjustments have been made to the Bill, such as mainly:

  • Scope of assessment of economic difficulties

The scope of the assessment of the company’s economic difficulties will be the company itself and not the group, including if the company belongs to a group. Nonetheless, the courts will have the power to verify whether the company’s economic difficulties were created “artificially” in order to justify job cuts.

  • New definition of senior executive

The definition of “senior executive” (cadre dirigeant), as contemplated in the Bill, incorporates the criteria laid down by case law. The absence of any counting of working time, including maximum work durations and minimum rest periods, is the key element of this new definition.

  • Increase in the personal training account for workers without diplomas, from 150 to 400 hours