In a decision dated 13 December 2018, the Labour Court of Troyes held that the scale provided for in Article L. 1235-3 of the French Labour Code (“Macron scale”) which sets a minimum and a maximum to the damages that may be awarded to an employee who has been unfairly dismissed “violates the European Social Charter and ILO Convention No. 158” and that it is therefore unapplicable.
Already faced with this question on 10 September 2018, the same Labour Court had stayed the proceedings and invited the plaintiff to refer the question to the European Court of Justice.
On 26 September 2018, the Labour Court of Le Mans had held otherwise and complied with the positions of both the Conseil d’État (CE, ord. Réf., 7 December 2017, n° 415243) and the Conseil Constitutionnel (CC, 21 March 2018, n° 2918-761 DC) that had condoned the Macron scale. The Labour Court of Le Mans held that “the provisions of Article L. 1235-3 of the Labour Code are not contrary to those of Article 10 of the ILO Convention No. 158” and that Article 24 of the European Social Charter is not “directly applicable” to an individual dispute.
Therefore, the judgment of the Labour Court of Troyes is a new brick in the building of a case law that will probably remain inconsistent for a few years, until it is referred to the Court of Cassation.