- Since September 2017, an employee victim of an unfair dismissal has his damages governed by a mandatory scale.
- This measure is challenged by several industrial tribunals.
- The legal debate will not be settled for several years.
It was September 22, 2017. In front of the television cameras, Emmanuel Macron solemnly signed the ordinances reforming the Labor Code. The head of state praised "a reform in depth" and "unpublished". Among the strong measures: the introduction of a mandatory scale that limits the damages paid to an employee in the event of unfair dismissal.
Less than two years later, the scale is in the visor of the tribunal and is seriously questioned. Three recent judgments – in Troyes, Amiens and Lyon – have indeed removed the cap in the law. Magistrates felt that the scale of orders was contrary to international law, or that it simply did not apply.
"The scale erases the social function of justice"
For example, in its judgment of 19 December 2018, the industrial tribunal of Amiens is based on the Convention 158 of the International Labor Organization (ILO), which has been ratified by France. This agreement provides for the payment of "appropriate" compensation in the context of an unfair dismissal. For magistrates of Amiens, the scale does not fall into this category and must be rejected.
"International treaties, when ratified, are superior to the law," said Marie-Alice Jourde, a lawyer at La Garanderie specializing in labor law. And from my point of view, the scale does not respect the ILO convention. "
What does the Council of State think?
She takes an example: "Imagine a young engineer and a worker of 50 years, with the same seniority in their business. The engineer, if he is fired, will quickly find a job because the demand in his sector is strong. For the worker, it will be much more complicated. However, with the scale, they will be entitled to the same compensation. I find it unfair because we do not take into account the person's employability (training, age, place of residence). The scale erases the social function of justice ".
For the moment, the Ministry of Labor is rather calm on the subject. Interviewed in December by The worldMuriel Pénicaud's entourage explained that the debate had been decided after an application for interim relief before the Council of State, which had confirmed the scale. Several jurists point out, however, that this decision did not settle the substantive question of whether the scale was an "appropriate" allowance.
The position of the Constitutional Council
This position is not shared by everyone. For Olivier Angotti, associate lawyer at Jeantet and specialist in labor law, the struggle of the labor courts is lost in advance: "The law amending the Labor Code has been validated twice by the Constitutional Council, he notes. . This means that it is compatible with international commitments, and therefore with the ILO Convention ".
In its decision rendered on March 21, 2018, the Constitutional Council says that the texts governing the schedule of labor courts are "in accordance with the Constitution". "I can understand that magistrates have this temptation of the" big night ", Olivier Angotti continues, but it is regrettable that, while they have for mission to say the right, they do not respect this decision which applies to all ".
"The interest of our decisions is to start the debate, believes Patrice Huart, chairman of the industrial tribunal of Troyes. A judgment of first instance does not create a jurisprudence ". The debate on the scale will go up first in the courts of appeal, and presumably until the Court of Cassation. This legal process will last several years before a definitive answer.