Compensation for dismissal without real and serious cause must fall within the Macron scale
The Court of Cassation maintains its ruling that compensation for dismissal without real and serious cause must fall between the minimum and maximum amounts on the scale, depending on the employee's length of service (Court of Cassation, Civil, Social Division, April 3, 2024, 23-13.452).
Under the so-called Macron ordinances of 2017, an imperative scale was instituted for the compensation due to the employee in the event of dismissal without real and serious cause (article L.1235-3 of the Labor Code) :
|
Company seniority |
Damages Companies 11 + employees (in months' salary) |
Minimum damages Companies -11 employees (in months of salary) |
Maximum damages (in months of salary) |
|
0 |
Not applicable |
Not applicable |
1 |
|
1 |
1 |
0,5 |
2 |
|
2 |
3 |
0,5 |
3,5 |
|
3 |
3 |
1 |
4 |
|
4 |
3 |
1 |
5 |
|
5 |
3 |
1,5 |
6 |
|
6 |
3 |
1,5 |
7 |
|
7 |
3 |
2 |
8 |
|
8 |
3 |
2 |
8 |
|
9 |
3 |
2,5 |
9 |
|
10 |
3 |
2,5 |
10 |
|
Seniority |
Minimum damages (in months of salary) |
Maximum damages (in months of salary) |
|
11 |
3 |
10,5 |
|
12 |
3 |
11 |
|
13 |
3 |
11,5 |
|
14 |
3 |
12 |
|
15 |
3 |
13 |
|
16 |
3 |
13,5 |
|
17 |
3 |
14,5 |
|
18 |
3 |
15 |
|
19 |
3 |
15,5 |
|
20 |
3 |
16 |
|
21 |
3 |
16 |
|
22 |
3 |
16,5 |
|
23 |
3 |
17 |
|
24 |
3 |
17,5 |
|
25 |
3 |
18 |
|
26 |
3 |
18,5 |
|
27 |
3 |
19 |
|
28 |
3 |
19,5 |
|
29 |
3 |
20 |
|
30 + |
3 |
20 |
It should be remembered that this scale applies only to compensation for dismissal without real and serious cause, and therefore does not apply to other claims (back pay, overtime, notice, etc.) or, above all, compensation for dismissal without cause (e.g. for moral harassment, discrimination or violation of the rights of protected employees).
Since the introduction of this scale, many employees have sought to obtain higher compensation than the scale, which may appear insufficient particularly for seniority of more than 2 years in companies with 11 or more employees. Before 2017, such employees could claim a minimum of 6 months' damages for dismissal without real and serious cause. Since 2017, the minimum is 3 months, and the ceiling reaches 6 months only after 5 years' seniority.
The Cour de cassation has already stated that there are no circumstances that would allow us to go beyond the scale (notably Cour de cassation - Chambre sociale December 6, 2023, no. 21-24.075).
In the case of April 3, 2024, the Court of Appeal had awarded compensation below the minimum of the scale, considering that the employee was young and could not justify his situation since his dismissal. It therefore doubted that he had suffered any real prejudice.
The Court of Cassation overturned the decision, as the compensation was lower than the stipulated minimum. This was an opportunity for the Cour de cassation to point out that " if an employee is dismissed for a reason that is not real and serious, the judge shall award the employee compensation payable by the employer, the amount of which shall be between the minimum and maximum amounts set by this text ".
Conclusion: An employee who has been dismissed without real and serious cause cannot receive compensation that is lower or higher than the Macron scale. Only additional claims relating to other aspects of the employment relationship will entitle him to additional compensation.
