France: The French Supreme Court has validated the indemnity scale for compensating unfair dismissal

Instituted by one of the “Macron orders (ordonnances) in September 2017, an indemnity scale, based on the employee’s length-of-service, has been defined, with a base and a cap on compensation by the Courts in the event of unfair dismissal.  It has, however, proven difficult to apply that indemnity scale in the Industrial Tribunals:  while some have refused to apply it, on the basis that it contradicts both article 10 of ILO convention 158 and article 24 of the European Social Charter, others have chosen to apply it.

Consulted on an advisory basis, the French Supreme Court (Cour de Cassation) issued an opinion on 17 July 2019, according to which the indemnity scale does not contradict international norms.  In the Court’s view, the notion of “adequate” compensation referred to in ILO convention 158 must be seen as giving the States party to the convention latitude to evaluate that “adequacy”.  Accordingly, the legal provisions instituting the indemnity scale, as well as the option of disregarding that scale in certain cases, arise from the latitude enjoyed by those States.

Despite the fact that this view has been expressed by the Supreme Court, i.e. France’s highest judicial authority, dissension continues.  Certain Industrial Tribunals have since held that the indemnity scale must not apply, while a decision from the Paris and Reims Appeals Courts is expected in late September.  Stay tuned…