By Arnaud Bresch , Firm: Capstan 

After some French employment tribunals refused to implement the Macron Government’s scale of awards for unfair dismissals, the French Supreme Court approved it on 17 July 2019. This article sets out the judges’ reasoning and probable next steps.

On 17 July 2019, French employment lawyers’ eyes were on the French Supreme Court as it rendered its decision regarding the ‘Macron scale’.

As a reminder, since December 2018 many French employment tribunals have considered the ‘Macron Scale’, setting minimum and maximum damages awards for unfair dismissal, unenforceable as the judges ruled that the scale breaches two international texts (Article 10 of Convention 158 of the International Labour Organization (‘Convention 158’) and Article 24 of the European Social Charter). Please see here for more details.

Following that, two employment tribunals made a referral to the French Supreme Court questioning the ‘conventionality’ of the ‘Macron scale’ (that is, whether it complies with international conventions) to obtain the Court’s opinion. The Supreme Court rendered two opinions in July 2019 stating that the ‘Macron Scale’ complies with Article 10 of Convention 158. As a reminder, this Article sets out the requirement for employees to be granted adequate compensation.

In the Court’s opinions, the word ‘adequate’ should be understood as giving state parties a ‘margin of discretion’ and the French State used this discretion in implementing the ‘Macron scale’. The French Supreme Court also pointed out in its opinions that judges are not bound by the ‘Macron scale’ if a dismissal is ruled null and void, for instance in cases of harassment or discrimination. This means that the judges retain freedom in the most serious cases.

The judges finally ruled out a breach of Article 24, holding that this Article has no force in domestic law in a dispute between individuals.

These two opinions rendered by the French Supreme Court should unify case-law to end legal uncertainty on this question and ultimately ‘employers will not be frightened to hire anymore’ as the Minister of Labour stated in a press conference following the opinions; this was one of the main goals of the ‘Macron scale’.

However, it should be borne in mind that the French Supreme Court has merely issued opinions and not given a judgement and, from a strictly legal point of view, lower employment tribunals are not bound by these two opinions. At least two labour tribunals have resisted and continued to rule that the ‘Macron Scale’ in not enforceable. Nevertheless, these decisions should be the last spasms of the employment tribunals’ revolt until the Courts of Appeal and the French Supreme Court render decisions approving the ‘Macron scale’ definitively.