The cap of allowances to industrial labor has the lead in the wing? Entered into force at the end of September 2017, in the framework of the ordinances amending the labour Code, this cap – which applies in cases of unfair dismissal, is today called into question by several courts (prud labor. After the advice of the prud’hommes, Troyes, Amiens and Lyon last December, one of Grenoble has also just invalidate the new scale of damages provided for employees in the context of wrongful dismissal, in a decision dated Friday 18 January 2019.
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earlier, in mid-December – in a decision that was viewed by the AFP -, the council of prud’hommes of Amiens had estimated that the capping of compensation prud labor paid to a dismissed employee “without cause real and serious” was “contrary” to international law. The provisions of article L1235-3 of the labour Code, which sets ceilings for compensation for unfair dismissal based on the employee’s length of service, are “contrary to the convention 158 of the international labour Organization (ILO) because they do not fix adequate compensation or any other form of compensation considered to be appropriate”, said the judgment delivered on 19 December.
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In its decision, identified by the Current HR and The World , the council of prud’hommes of Amiens recalled that France had ratified in 1989 the convention. It stated that national courts must be empowered to “order the payment of adequate compensation or any other form of compensation considered to be appropriate” in cases of unjustified dismissal. “The employee (licensee) suffered irreparably injury (…) of psychological order but also of a financial nature” because the compensation paid by the Pôle Emploi does not maintain its revenues at the previous level, estimated the council, composed of two advisers employees and two advisors employers. In this case, the prud’hommes were seized in February 2018 by the employee of a trade of general food. They have deemed abusive dismissal and, as such, sentenced the company to pay 2.000 euros of damages and interests, which is more than half a month’s salary that the schedule provided by the labour Code, he would have given.
In a decision rendered on 21 December, the council of prud’hommes de Lyon had also decided to bypass the cap on damages that employees can claim for unfair dismissal.
The allowances may not exceed 20 months of gross salary
as a reminder, according to the orders amending the labour Code, the damages and interests that may perceive the employees in the event of termination of employment without cause real and serious are capped according to their seniority. In the case of unfair dismissal, the compensation prud labor are limited to 3 months salary up to 2 years of age and then gradually increase up to 20 months of salary for 30 years seniority.
in practical terms, this means that judges can no longer fix the amount of damages they want. This amount should not be higher than the scales provided by the ordinances, except in the case of harassment, discrimination or to violation of the fundamental freedoms (such as, for example, freedom of expression).
A similar decision made for the first time in Troyes, france, in December
on The 13th of December, for the first time, the council of prud’hommes de Troyes had made a series of decisions going in the same direction as those of Amiens, of Lyons and Grenoble, by by-passing the cap on damages that employees can claim in the tribunals in cases of unfair dismissal. According to him, the cap was contrary to the european social charter and the convention of the international labour Organization (ILO).
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“This cap does not allow the judges to assess the individual situations of employees unfairly dismissed in their entirety and to repair the right way the harm they have suffered”, had explained to the councillors. In addition, “these scales do not allow to be disincentives for employers who wish to dismiss without cause real and serious an employee, stating-they. These scales were designed to secure more offenders than victims, and are therefore unfair”.
“The only court that unifies the case law in France, it is the Court of cassation”
Asked about the legal impact of the decisions of the conseils des prud’hommes de Troyes and Amiens, Me Eva Touboul – lawyer labour law -, recently said in Figaro that”a party of lawyers of employees considers that the capping of compensation prud labor of September 2017, is contrary to international conventions, and in particular that of the ILO” and that “these two decisions reinforce the idea that they have had reason to raise this point in their conclusions and in their pleadings”. “To know if this decision will be case-law, it would be one of the losers refer a matter to the Court of appeal and make a decision. It should then be that the Court of cassation channel new this item”, cost Me Eva Touboul. Before continuing: “This may be long, a minimum of 4 years. For the moment, these decisions are a great step but do not make case law. The only court that unifies the case law in France, it is the Court of cassation”. The lawyer reminded us, finally, that the union FO had seized the european Committee of social rights (ECSR), as of march 2018, to challenge the establishment of a schedule are imperative before the prud’hommes. The union considers that the scale setting a cap on the repair of the prejudice of the employees dismissed unjustifiably, is contrary to article 24 of the revised european social Charter, “in that it does not meet the criteria for what should be an appropriate remedy, that is to say, the criteria of adequacy, effectiveness and deterrence vis-à-vis the employer”. The judgment of the conseil des prud’hommes de Lyon December 21, is based precisely on this article.
