The cap on compensation for industrial tribunals violates the European Social Charter

It’s a setback for Emmanuel Macron. The European Committee of Social Rights of the Council of Europe (CEDS) considered that France violated the European Social Charter by capping compensation for industrial tribunals in the event of unfair dismissal, in a decision made public on Monday.

Seized by the CGT and the CGT-FO in October 2017 and March 2018, the CEDS considers that “the right to adequate compensation or other appropriate reparation within the meaning of Article 24.b of the Charter is not guaranteed ” by the Labor Ordinances adopted in 2017. This passage of the Charter defines in particular ” the right of workers dismissed without valid reason to adequate compensation or other appropriate redress “, with ” a right of appeal against this measure before an impartial body “.

Limits “not high enough”

The Committee, which took its decision unanimously by its fifteen members, still considers that “the ceilings provided for (…) are not high enough to repair the damage suffered by the victim and dissuasive for the employer”. The CEDS had already condemned Finland in 2016 for a similar ceiling of compensation set at 24 months.

The “Macron scale”, an emblematic and highly contested measure at the start of the previous five-year term, came into force in September 2017 by means of an ordinance, despite strong opposition from the unions. It abolished the floor of a minimum of six months’ compensation for employees with at least two years’ seniority, and capped between one and twenty months’ gross salary, depending on seniority, the damages due in the event of unfair dismissal (excluding dismissal for harassment or discrimination).

A non-binding decision

Previously, the industrial tribunal had only an indicative scale. The “Macron scale” was validated by the Constitutional Council in 2018, then by the Court of Cassation in May. The latter considered that it was not contrary to Article 10 of Convention No. 158 of the International Labor Organization (ILO), which provides that in the event of unjustified dismissal, the judge may order the payment an “adequate” compensation to the employee.

She then underlined that the decisions of the CEDS “are not binding in French law”. The CEDS recalls that its decisions “can serve as a basis for positive developments for social rights” and that the European Social Charter, a complement to the European Convention on Human Rights in social and economic matters, is a text binding on the States which have signed it. France signed it in 1996 and ratified it in 1999.

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