International Labor and Employment Law

Guide to Whistleblowing – France Chapter

In this new age of accountability, organizations around the globe are having to navigate a patchwork of new laws designed to protect those who expose corporate misconduct. IEL’s Guide to Whistleblowing examines what constitutes a protective disclosure, the scope of regulations across 18 countries, and the steps businesses must take to ensure compliance with them.

Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world: Guide to Whistleblowing – France Chapter

The Long-Awaited Decisions of the Social Chamber on the Macron Scale Have Just Been Rendered

The Social Chamber of the Court of Cassation today issued two long-awaited decisions on the compensation scale currently applicable in the event of dismissal without real and serious cause.

The so-called “Macron Scale” is the result of an ordinance of 22 September 2017 (No. 2017-1387) and appears in Article L. 1235-3 of the Labour Code. It holds that, in the event of dismissal deemed to be without real and serious cause, a judge may propose the reinstatement of the employee in the company. If either party refuses this reinstatement, the judge then awards the employee an indemnity payable by the employer, the amount of which is between minimum and maximum amounts.

These amounts are expressed in months of gross salary and depend on the number of employees in the company and the seniority (in full years) of the employee. The scale is progressive and the maximum amount is capped at 20 months for employees with  at least 29 years of service.

According to the French government, the introduction of the scale aims to increase predictability and secure the employment relationship or the effects of its termination for employers and their employees. Other European states, notably Belgium, Denmark, Finland, Germany, Switzerland, and Spain, have set up similar scales.

France’s scale (and mainly the compensation ceiling) gave rise to lively debates that focused on the question of its enforceability, on the grounds that it would disregard international rules of treaty law, mainly:

  • Article 10 of ILO Convention No. 158, ratified by the France in 1989, which provides that national courts must “be empowered to order the payment of adequate compensation or any other form of compensation considered appropriate”; and
  • Article 24 of the European Social Charter, which requires national law to provide for “the right of workers dismissed without just cause to adequate compensation or other appropriate redress”.

The argument can be summarized thusly: given the compensation ceilings to which the judge is bound, the scale would not allow adequate compensation to the employee dismissed without valid reason.

The debate gave rise to numerous actions in France. The Court of Cassation considered, in an opinion of 17 July 2019, that the scale was compatible with Article 10 of the ILO Convention (it considered on this occasion that Article 24 of the Social Charter had no direct effect).

Despite this opinion (which does not has the value of a decision) , a number of French industrial tribunals have decided to set aside the scale. Some jurisdictions have decided that the scale is not compatible with international law (CPH of Angoulême of 9 July 2020 RG F 19/00184). Others, such as the Reims Court of Appeal (25 September 2019, No. 19/00003), considered that if the scale was not unconventional, the review of conventionality did not exempt the judge from assessing whether it did not disproportionately infringe the employee’s rights by imposing burdens disproportionate to the result sought.

The decisions of the Social Chamber were then expected. At the Chamber hearing held on 31 March, the First Advocate General had suggested that the Court should engage, like the Reims Court of Appeal, in an “in concreto review”.

This is not the route followed by the French Supreme Court today. In summary, the Court of Cassation:

  • Recognizes the conventionality of the scale with regard to Article 10 of ILO Convention No. 158 (judgment No. 654: “The provisions of Articles L. 1235-3, L. 1235-3-1 and L. 1235-4 of the Labour Code are thus such as to allow the payment of adequate compensation or compensation considered appropriate within the meaning of Article 10 of ILO Convention No. 158. It follows that the provisions of Article L. 1235-3 of the Labour Code are compatible with the provisions of Article 10 of the above-mentioned Convention”)
  • Refuses to engage in a review of conventionality in concretocontrary to the suggestions of the First Advocate General and the position adopted by the First Civil Chamber in 2013 (judgment n°654: “In ruling in this way, when it was only up to her to assess the concrete situation of the employee to determine the amount of compensation due between the minimum and maximum amounts determined by Article L. 1235-3 of the Labour Code, the Court of Appeal violated the above-mentioned texts”)
  • Refuses to recognise the direct effect of the European Social Charter (judgment no. 655).

The conventionality of the Macron scale is thus again affirmed without reservation by the Court of Cassation.

This is very good news for French employers.

The decisions provide indeed legal certainty: judges cannot in principle deviate from the scale and must assess damages awards within the limits of the scale.

Will this however  make it possible to put an end to the contentious debates on the unconventionality of the scale? Nothing is less certain as  industrial courts mays well decide to disregard these decisions and take the risk to have their decisions cancelled by higher Courts.

They should however be more and more reluctant to do so.

Reorganisations in France: How to Select the Best Tool

Alexandra Stocki, French & EU Employment Group partner, authored an article titled “Reorganisations in France: How to Select the Best Tool” in IEL (International Employment Lawyer).

This article discusses the points that must be checked before considering the best tool for a reorganisation.

To access the full article, please click here.

New Ways of Working

Beatrice Pola and Alexandra Stocki are contributing authors to IEL’s (International Employment Law) “New Ways of Working” resource page that explores and keeps track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede.

On the France-specific page, Beatrice, Alexandra and Rachida address timely questions concerning remote work, return to work and vaccinations, health and safety, and unions and/or work counsels.

To access, please click here.

Why the EU Commission’s Gig Economy Proposals Will Not Meet French Expectations

Alexandra Stocki, French & EU Employment Group partner, recently published an article titled “Why the EU Commission’s Gig Economy Proposals Will Not Meet French Expectations” in IEL (International Employment Lawyer).

This article discusses a draft proposal directive which aims to improve working conditions in platform (contractual/gig economy) work. This proposed directive would ensure that people have or can obtain the correct employment status in light of their actual relationship with a digital labour platform resulting in these workers being classified as either employees of the platforms or as independent workers.

To access the full article, please click here.

Five Questions for Employers to Ask Before Metaverse Working

Alexandra Stocki, French & EU Employment Group partner, recently published an article titled “Five Questions for Employers to Ask Before Metaverse Working” in IEL (International Employment Lawyer).

This article addresses work performed within the metaverse (Mark Zuckerberg’s “embodied version of the internet”) and the evolving employment related legal concerns.

To access the full article, please click here.

Employment Law: Presidential Elections Part 2

Labor law is not central to the 2nd round campaign. The great opposition between Marine Le Pen and Emmanuel Macron is on pensions. Marine Le Pen is opposed to any increase in the current legal retirement age (62). The candidate of the Rassemblement national (RN) defends a legal retirement age of 60, for employees who worked before 20 and for forty years. Emmanuel Macron, on the other hand, wants to raise it to 64 or 65 and is still considering a broader reform, which could give rise to a referendum. The pension question might well be a key to the 2nd round of the election.

Besides this, Marine Le Pen still carries the idea of a national preference. Her program plans that the access of foreigners to any public or private employment, to the exercise of certain professions, economic or associative activities, functions of professional or union representation, would be fixed by law. Marine Le Pen clearly reserves the right to prohibit, by a simple law, any type of employment for foreigners in any sector of activity. Such a provision would most certainly be deemed contrary to the constitutional principle of equality, as well as to EU regulations. Before any adoption, such a provision would therefore require a modification of the constitution and of European commitments. Such a provision if adopted, would necessarily impact the activity of many French economic sectors.

Marine Le Pen refers from time to time to the need to make labor law more flexible. However, she usually does not specify her thoughts or give concrete examples. Such a statement is likely more of a slogan than an element of her program.


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