OD FLASH | Challenge to the Macron scale: The Supreme Court reaffirms its compliance

Supreme Court, April 9, 2025, No. 24-11.662

Firstly, pursuant to Article L. 1235-3 of the French Labour Code, if an employee is dismissed for a reason that is not real and serious, the judge shall order the employer to pay the employee compensation, the amount of which shall be between the minimum and maximum amounts set by this text, depending on the employee’s length of service.

Secondly, pursuant to Article 10 of International Labour Organisation (hereinafter “ILO”) Convention No. 158 and Article 24 of the European Social Charter, workers who are dismissed without valid reason are entitled to adequate compensation or other appropriate compensation. The European Committee of Social Rights specifies, in its decision of 8 September 2016 No. 106/2014, that compensation mechanisms are considered adequate when they provide for ‘compensation of a sufficient amount to deter the employer and to compensate the victim for the damage suffered’.

In this case, an employee dismissed for misconduct brought various claims before the labour court in relation to the performance and termination of his employment contract. He sought, primarily, that his dismissal be declared null and void and, alternatively, that his dismissal be recognised as having no real and serious cause. In addition, he argued that the scale provided for in Article L.1235-3 of the Labour Code should be disregarded, in particular because it did not provide him with adequate compensation to which he was entitled under the aforementioned provisions.

The Caen Court of Appeal, in a ruling dated 14 December 2023 (No. 22/01360), rejected the employee’s claims on the grounds that the provisions of Article L. 1235-3 of the Labour Code allow for the payment of adequate compensation or redress considered appropriate within the meaning of Article 10 of ILO Convention No. 158 and are therefore compatible with those provisions.

The employee then filed an appeal before the Supreme Court.

The Supreme Court dismissed the appeal and stated that the provisions of Articles L. 1235-3, L. 1235-3-1 and L. 1235-4 of the Labour Code allow for reasonable compensation for unfair dismissal, ensure that the sums payable by the employer are dissuasive, and are therefore such as to allow the payment of adequate compensation or redress considered appropriate within the meaning of Article 10 of Convention No. 158 of the ILO.

The Supreme Court therefore ruled that the provisions of Article L. 1235-3 of the Labour Code are compatible with the provisions of Article 10 of the aforementioned Convention.

The Court also points out that the provisions of the European Social Charter do not have direct effect in intern law and cannot therefore be invoked in a dispute between individuals. Consequently, this provision cannot lead to the application of the provisions of Article L. 1235-3 of the Labour Code being set aside.

This decision is in line with the case law of the Supreme Court, which has already held that Article L. 1235-3 of the French Labour Code is compatible with the provisions of Article 10 of ILO Convention No. 158 (Supreme Court, May 11, 2022, No. 21-14.490; Supreme Court, May 11, 2022, No. 21-15.247; Supreme Court, September 6, 2023, No. 22-10.973).