Macron scale: the revolt is organized
We remember the judgment of the Rouen Court of Appeal, which, on September 25, 2019, a little over a year ago now, was the first to speak out against “rigidity” (we we will return to it) of the Macron scale, noting in passing that "the control of conventionality does not exempt, in the presence of a system deemed conventional, from assessing whether it does not cause a disproportionate attack on the rights of the employee concerned. that is, by imposing burdens on it that are disproportionate to the desired result.” The statement is not trivial and must be underlined, it in fact establishes an analysis in concreto, an analysis which allows the judge to set the severance pay of the injured employee himself, thus freeing himself from neither more nor less from the said scale and to take into account the reality of the damage suffered, to use an expression widely used since. Compensation for the damage proportional to the damage overall. Logic. Not so much.
The Macron scale at the heart of judicial vindictiveness
As a reminder, since the implementation of the so-called Macron ordinances of 2017, compensation for unfair dismissal is capped and limited to a scale that considers only two criteria: the employee's length of service with the company and the company's size. This alone reveals the rigidity, even the inadequacy, of such a scale in relation to the actual harm suffered by an unfairly dismissed employee, taking into account factors such as age, family responsibilities, health, and the state of the job market. For example, considering that compensation is calculated in months of gross salary, with the first figure representing the minimum and the second the maximum, an employee with one year of service will receive, regardless of the actual harm suffered, between one and two months' salary in severance pay for a dismissal deemed unfair and without just cause, in a company with more than 11 employees; and between half a month and two months in a company with fewer than 11 employees. The minimum severance pay remains unchanged for companies with more than eleven employees, staying at three months' salary regardless of the employee's length of service, and ranging from two to twenty months for the maximum severance pay, with twenty months' salary applying to employees with thirty years of service. The same applies to companies with fewer than eleven employees.
The assessment in concreto new spearhead of the trial judges
It is from this legal context, set out in article L. 1235-3 of the Labor Code, that the revolt was born. Ignoring this barometer, the trial judges thus decided to continue to determine for themselves the amount of industrial tribunal compensation due in the event of dismissal without real and serious cause. Reims, Grenoble, Angoulême, Bobigny and now Bourges, concrete analysis seems to be on the rise. We will put aside here the more ambiguous decision of the Parisian judges, just evoking the idea of adequate reparation.
What criteria come into play? They will logically depend on the specific situation of each employee. But, typically, some “major” criteria emerge. Judges generally take into consideration the age of the dismissed employee, their family situation, and their state of health as well, but not only. The judgment of November 6, delivered by the Bourges Court of Appeal, is most revealing in this regard. The judges in fact ruled out the application of the Macron scale by taking into account the classic criterion of the employee's age, but also adding their job searches and the tensions of the current job market. The reasoning is initially identical to that of the Rouen judges: "when a dismissal is unjustified, the control of conventionality does not exempt, in the presence of a system deemed conventional, from assessing whether it does not harm disproportionate to the rights of the employee concerned by imposing on him disproportionate burdens in relation to the result sought, in this case full compensation for the damage he suffered. And subsequently clarified: “However, in this case, it appears that Mr. B was 59 years old on the day of his dismissal and had 5 years of seniority within the company. He has an impressive number of unsuccessful job searches without being able to blame him for not having limited them to his area of expertise, logistics. Indeed, given his age and the French job market, it was in his interest to extend his research well beyond his main area of expertise. He cannot be blamed for the lateness of his research since, over the period from October 2019 to July 2020, he has submitted at least 177 applications.
The decision is implacably logical. The difficulty in finding a job, especially given the context of the health crisis, risks becoming an essential criterion in the concrete assessment of the trial judges. And the modus operandi that is the appreciation in concreto finds its full meaning here.