Before 2017, the amount of unfair dismissal damages were not capped. From 2017, the amount of unfair dismissal damages has been framed within a minimum and maximum scale set by law, called the Macron scale. According to this scale, if a dismissal is considered unfair (without a real and serious cause), judges can propose the reinstatement of the employee and place sanctions on the employer to pay unfair dismissal damages.
The Macron scale was very controversial and was subject to harsh resistance from the French Courts as it limits the power of the judges and does not allow for adequate and appropriate employee compensation. The Court of Appeal considers that the Macron scale is not compatible with the legal requirements in Convention No. 158 of the International Labor Organization (ILO).
On 11 May 2022, the French Supreme Court put an end to the legal soap opera drama on the Macron scale. In two decisions, the Supreme Court decided that the Macron scale was compliant with Convention No. 158 of the ILO.
However, the French Supreme Court stated that the scale does not apply for some dismissals:
- A dismissal due to a violation of a fundamental freedom right;
- A dismissal due to harassment or discrimination;
- A dismissal following legal action about gender equality or the reporting of crimes and offences;
- A dismissal of a protected employee; and
- A dismissal of an employee who is protected under pregnancy and maternity leave, paternity leave, adoption leave, parental leave and periods of suspension due to an industrial accident or occupational disease.
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