The European Committee of Social Rights of the Council of Europe considers that the cap on compensation in the event of unfair dismissal, introduced in 2017, violates the European Social Charter.
Towards a setback for Emmanuel Macron? As soon as he arrived at the Elysee in 2017, Emmanuel Macron, by adopting several ordinances, disrupted the labor code. One of the most emblematic: the limitation of the compensation that a worker could obtain by resorting to labor justice in the event of dismissal without real and serious cause by his employer.
As of now, there is no longer a six-month minimum compensation floor for workers with at least two years of seniority, and compensation is capped between one and twenty months of gross salary, depending on seniority. of unfair dismissal.
A scale once again called into question
He announced the government’s goal, to give “visibility” to employers who would be discouraged from hiring on permanent contracts because redundancies would be too costly. Five years later and after numerous unsuccessful appeals, in particular before the Constitutional Council or the Court of Cassation, the European Committee of Social Rights (CEDS) of the Council of Europe considers that this text violates the European Social Charter.
According to the ECSR, “the right to adequate compensation or other appropriate remedy within the meaning of Article 24.b of the Charter is not guaranteed” by the Labor Orders adopted in 2017. An Article 24.b that defines in particular “the right of workers dismissed without just cause to adequate compensation or other adequate redress”, with “a right to appeal against this measure before an impartial body”. The scale ceilings are considered not “high enough to repair the harm suffered by the victim and to be a deterrent to the employer”.
no immediate impact
However, Article 24 of the European Social Charter, on which this decision is based, does not have direct effect in France. Therefore, this decision will not have an immediate impact on France, but revives the debate on the future of the Macron scale.
Article 10 of Convention 158 of the International Labor Organization is directly applicable, and this article establishes that in the event of “unjustified dismissal”, the judge must be able to order the payment of “adequate compensation” to the worker. A term that is also found in section 24 of the Charter.
Consequences in the future?
“Given that the European Committee of Social Rights (ECSR) considers that ‘adequate compensation is not guaranteed in the sense of article 24.b of the Charter’, and given that article 10 of the ILO Convention 158 in France, which is similar to this article 24, a judicial decision could dismiss the Macron scale in the future”, estimates Julien Brochot, a lawyer in labor law.
This new decision could also provide an additional argument for the lawyers who defend their clients at the Prud’hommes. “This new decision makes it possible to file new Priority Constitutional Issues, giving rise to a decision by the Constitutional Council that could, this time, invalidate the scale,” continues the lawyer.
Finally, continues the specialist, France could be the subject of recommendations from the Council of Ministers of the Council of Europe, on which the European Committee of Social Rights depends, which could ask it to modify its law, without being able to force it to do so A delicate situation for France, which ratified the European Social Charter, a complement to the European Convention on Human Rights in social and economic matters, in 1999. Five years later, the debate on the Macron scale is relaunched again.
VIDEO – The sensitive points of the labor code reform in 2017