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Against the Macron scale, the “resistance judgment” of the Douai Court of Appeal

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Five years after having burst, the “battle of the prud’hommes” still causes sparks. The Douai Court of Appeal has just rekindled the flame of rebellion against a flagship measure of Emmanuel Macron’s first term: the framework for damages that the courts award to employees who are victims of dismissal without real and serious cause. . The northern magistrates, in a judgment delivered on October 21, rejected this provision, because it “does not allow adequate and appropriate compensation” of the damage suffered by a man employed in a cleaning company. The decision attracts attention because it contradicts the highest courts of our country.

At the beginning of the controversy, there is a scale put in place by the ordinances of September 2017 which rewrote the labor code. It comes in the form of compensation grids, with floors and ceilings that vary according to the seniority of the employee and the size of his company.

Although they have received the green light from the Council of State and the Constitutional Council, these rules have been challenged before the courts, on the grounds that they do not always provide compensation “adequate” to the person abusively dismissed by his boss. However, this is a principle enshrined in texts to which France has subscribed: Convention No. 158 of the International Labor Organization (ILO) and the European Social Charter.

“Special Circumstances”

In several disputes, industrial tribunals, followed by courts of appeal, have freed themselves from the scale and awarded the plaintiffs sums greater than what was provided for by it. In support of their decision, these courts relied on the ILO convention and the European Social Charter. The feud lasted for several years. Seized by the CGT and Force Ouvrière, the ILO also got involved: in a report published at the end of March, one of its authorities wrote that the scale might not ensure the right level of protection and invited the authorities French authorities to assess it at regular intervals, to consider possible improvements.

After many twists and turns, the Court of Cassation validated the mechanism, first in an opinion in 2019. Then, in judgments delivered on May 11, 2022, it considered that it complied with France’s international commitments and that the courts had to comply with it, in the name of the principle of equality, in order to avoid the excesses of a right applied to the card.

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