Are the indemnities for an employee falsely dismissed always capped?

Since September 22, 2017, an ordinance known as the "Macron" ordinance has set a scale of compensation for dismissals made wrongly by an employer, and which a priori the judge cannot free himself from.

But on several occasions, the industrial tribunals and the courts of appeal have resisted by removing the ceiling on compensation.

And this, despite an opinion issued by the Court of Cassation in July 2019, which ruled out the application of a European charter which pleaded for total compensation for the employee's prejudice, which should not be capped by a scale.

Is the "Macron" scale therefore disowned by the courts?

Lawyer Roland Perez explains this sensitive issue on Saturday morning on Europe 1.

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The "Macron" scale "disproportionately infringes" the rights of certain employees 

As a reminder, according to the Macron scale, the amount of compensation varies according to the employee's seniority and the number of employees in the company.

But the Paris Court of Appeal decided in a case judged a few weeks ago to free itself from it and to remove the ceiling for these severance payments.

It thus follows in the footsteps of other courts of appeal in France, which have unearthed a convention of the international labor organization, which they consider to be of superior application to the French labor code and which advocates full compensation and appropriate dismissal when it has been found to be without real and serious cause.

In other words, judges believe that sometimes this scale disproportionately affects the rights of certain employees.

A 53-year-old employee who has not found a job

In this case, the unfairly dismissed employee was 53 years old. On the day the case was judged, that is to say several years after her dismissal, she had still not found a new job, justifying significant loss of income damage. If the "Macron" scale had been applied based on his seniority, this only allowed him to receive 4 months of salary, which was derisory compared to the reality of his economic damage. The Court of Appeal therefore, in view of the employee's age and her poor ability to find a job, decided not to apply the scale. Otherwise, his personal situation following the dismissal would not have been sufficiently taken into account.

Still, the employer can go to the court of cassation to challenge the decision of the court of appeal. And in view of the simple opinion that had been issued by it in 2019, the supreme court could this time render a decision that will set a precedent.