Case law updates
Macron scale of compensation due for unfair dismissal: The application of the so-called Macron scale that provides for caps and floors of compensation due in the event of unfair dismissal set forth by Article L. 1235-3 of the French Labour Code was set aside by the Paris Court of Appeal in a decision rendered on 16 March 2021 (Court of Appeal of Paris, 16 March 2021, n° 19/08721). The Judges considered in the present case that the Macron scale did not ensure “a relevant and appropriate compensation of the loss suffered by the employee”. The Paris Court of Appeal followed in the footsteps of several other courts of first instance which, while admitting the conformity in abstracto of the Macron scale with Convention n° 158 of the International Labour Organization (ILO) have arrogated to themselves the right to set it aside should it not allow in concreto for adequate compensation of the loss suffered by the employee in case of unfair dismissal. The position of the French Supreme Court on this new rebellion of the courts of first instance against the Macron scale is awaited with interest, as it had concluded in the context of a specific opinion procedure1 that the Macron scale was in conformity with the Convention n° 158 of the ILO (Cass. soc., AP. 17 July 2019 n° 15013).
“Forfait jours” mechanism2: The French Supreme Court recently reiterated that failure of the employer company to comply with its legal and conventional obligations in relation to the “forfait-jours” mechanism, the individual “forfait-jours” agreement is unenforceable, the employee being free to make overtime claims (Cass. soc., 17 February 2021, n° 19-15.215). Keeping in mind that on their side, the employer company could request the reimbursement of the additional rest days the employee had benefited from in counterpart of the “forfait-jours” mechanism (Cass. soc., 6 January 2021, n° 17-28.234). In the present case, the employer company was unable to demonstrate that it had organized between 2005 and 2009 the annual meeting provided for by the collective agreement that implemented the “forfait-jours” mechanism to discuss the workload, the organization of work within the company, the relationship between the employee's professional activity, their personal life and their compensation.