The simplification of the Labour Code sought by the reform orders adopted by the government of Emmanuel Macron has however left the law open to specific legal challenges, including challenges governed by the conventions of the International Labor Organization (ILO).
The contradictions in the reform
Some legal professionals point out that the reform of labour law initiated by President Macron is contradictory to some aspects of international labour law. Furthermore, they highlight several provisions of the reform in particular which are adjudged to be in conflict with international conventions 158, 98 and 87 of the ILO of which France is a signatory.
In the context of a trial, the litigants could thus present to the judge a request relating to the analysis of the conformity of the internal law with the international law. If it becomes clear that French law is not in conformity with international law, the judge must then reject the application of the first and privilege the international law which is superior to it.
The ceiling on industrial tribunal damages
The reform of the law of salaried work now limits to a fixed scale the reparation of damages suffered by an employee victim of dismissal without real or serious cause, which can be considered as unconventional under international law.
Article 10 of the ILO International Convention effectively states that compensation must cover in full the damages suffered by the dismissed employee, in addition to taking account of his seniority only. Thus, employees may have to ask the bodies of industrial tribunals, the court of appeal or the court of cassation, to dismiss the new provisions brought by the reform of the labor code which provides for the cap incompatibility with Article 10 of the ILO Convention.
In fact, the provisions that require the judge to retain only the seniority of the employee as a criterion for assessing the injury suffered are incompatible with international law. According to the latter, internal judges must make full reparation for damages suffered by dismissed employees beyond the mere taking into account of seniority.
Recourse against the industrial tribunal
It must be remembered that the scales, ceilings and floors established by the ordinances only concern disputes related to the absence of real and serious cause of dismissal. It is only these applications that are subject to a scale while all other applications are subject to a lump sum (notice, legal compensation, fixed compensation for hidden work) and are imposed on the judge.
With respect to claims seeking compensation for any other distinct injury, the legislator has full discretion, without any applicable scale. Thus, in cases of harassment, violation of fundamental freedoms or harassment, the judge assesses the compensation to be granted to the employee according to all the elements of the file.
The Court of Cassation recently recalled, in a judgment of 13 September 2017, that it was firmly opposed to the cap on damages fixed by the reform of President Macron by ruling that judges alone have the discretion to assess the damages suffered by the employees because of the unjustified loss of their jobs.
The rulings handed down by the Court of Cassation also reaffirm that damages distinct from unjustified loss of employment (for lack of genuine and serious cause) must give rise to full compensation and may be the subject of the award by the judges. additional damages in the event of the finding of the separate injuries suffered.
As a consequence, the following damages are not subject to any ceiling: damages for unfair execution of the labor law, damages for breach of the employer’s obligation of security of result, damages for damages related to the vexatious circumstances of the dismissal and the presence of sums due in respect of wages, paid leave, overtime, compensatory rest…