Would dismissing a CDI without cause be cheaper than paying the precariousness premium for a CDD? It is more complicated than that…

On Wednesday, the Court of Cassation validated the “Macron scale”, the ordinance which caps compensation for unfair dismissal or without real and serious cause to industrial tribunals. Adopted in 2017, this scale had been undermined by several jurisdictions which had ignored this cap, relying on Article 24 of the European Social Charter of May 3, 1996 ratified by France. By ruling out the possibility of judging “on a case-by-case basis”, the highest court of the French judicial order endorses the application of the scale.

The announcement stirred social networks, and several Internet users noted that from now on, an employer will pay less by dismissing an employee on a permanent contract (CDI) without cause rather than having to pay the precariousness bonus to an employee. on a fixed-term contract (CDD). An idea which, if true, could transform the world of work and the job market.

FAKE OFF

The reality is not so absolute since this statement is only true in certain cases. The precariousness bonus is an indemnity paid to the employee on a fixed-term contract at the end of his contract if it is not continued by a permanent contract. It is equal to at least 10% of the total gross remuneration paid during the contract. However, there are exceptions for which this percentage is limited to 6% by an extended branch collective agreement or agreement (and in return for privileged access to vocational training). It may not be paid in certain special cases, such as the refusal of a permanent contract for the same job, for example (exceptions are detailed on the URSSAF website).

The “Macron scale” depends on two criteria: the size of the company (less than 11 employees or 11 employees and more) and the employee’s seniority in the company. Thus, according to these criteria, what the company will have to pay different sums to its employee dismissed in an abusive manner or without cause, sums sometimes less important than a precarious bonus for a CDD of equivalent seniority, sometimes more.

Winners-Losers… It also depends on the size of the company

For example, for a 12-month CDD who receives a salary of 2,000 euros gross, a company, regardless of its size, will pay him 2,400 euros at the end of his contract. In the event of dismissal without real and serious cause for an employee on a permanent contract after 12 months at the same salary, the company with less than eleven employees will have to pay between 1,000 and 2,000 euros according to the judge’s decision. A company with eleven or more employees will have to pay between 2,000 and 4,000 euros.

Another example, for a 24-month CDD who receives a salary of 4,000 euros gross, the company will have to pay him 9,000 euros in precariousness bonus. For a CDI, the company with less than eleven employees will pay between 2,000 and 14,000 euros, and between 6,000 and 14,000 euros for the company with eleven or more employees in the event of dismissal without real and serious cause.

Significant risks compared to financial gains

To find out the range in which an employee on a permanent contract dismissed without cause finds himself, he can go to the service-public.fr site, which offers a table of the different possibilities. The site recalls that when the judge finds that the dismissal is void because it occurred under certain conditions (harassment, violation of fundamental freedoms, etc.), the Macron scale does not apply, so the amount of the compensation prud’homale cannot be lower than the wages of the last 6 months.

Asked about these topics by 20 minutes, Claire Abate, employment law lawyer and founder of the firm AC Legal Avocat, specifies that it is unlikely that the measure will lead to a shift in hirings on permanent contracts to favor dismissal without cause even if it turns out to be less costly for the employer. employer than a precariousness bonus: “Companies are not going to play at calculating to the penny what it would cost them in this type of case. Firstly because they have a brand image to preserve, and the judgments at the Prud’hommes are not brilliant for them. But also because they have a social climate to preserve. They will not have fun multiplying unfair dismissals at the risk of losing the confidence of the remaining employees. »