The amount of damages depends on the actual loss suffered by the employee. For dismissals notified on or after 24 September 2017, the ordonnance n° 2017-1387 provides that the damages have a preset minimum and a maximum amount depending on the employee’s length of service. The ordonnance also stipulates specific lower minimum amounts for companies that usually employ fewer than 11 employees, but the maximum remains identical.
In some circumstances, the dismissal will be void, allowing the employee to request reinstatement. (These circumstances may include collective redundancies without a social plan, dismissal after an occupational injury or in discriminatory dismissals, or dismissal of a protected employee without state authority authorisation). In such a case, the compensation cannot be less than six months’ salary.
Should the employer dismiss an employee on personal or economic grounds without a valid cause, the employer would have to pay a dismissal indemnity.
In addition, the employee could claim damages for injuries suffered due to his / her wrongful dismissal.
If a fair reason is not given or the legal formalities are not complied with, the employee may alternatively claim:
- Reinstatement of position, which can only be claimed by employees who do not occupy leading positions (management positions) and/or were not in positions of trust (employees who work in close contact with senior staff and who have access to the company’s confidential information). Workers in management or trust positions are only entitled to claim compensation for dismissal if they are unfairly dismissed.
- Compensation for unfair dismissal, which is equivalent to: (i) for employees hired for an indefinite period of time, one and a half monthly salaries for each year of service, with a maximum of 12 salaries; and (ii) for employees hired for a fixed term, one and a half monthly salaries for each month that remains until the end of their contract, with a maximum of 12 salaries.
In addition to the compensation for arbitrary dismissal provided by law, the judges have recently been admitting claims for compensation for damages arising from the dismissal. Such compensation is generally made up of the concepts of emergent damages, loss of profits and moral damages, the amount of which must be determined by the court. Additionally, the judges have established the right of dismissed workers to demand a new concept called “punitive damages”, the amount of which equals the amount that the worker stopped contributing to the pension system during the time he was laid off.
As we mentioned above, unfair dismissal does not release the employer from a claim for moral damages in addition to the compensation for unfair dismissal to be paid to the employee. Although legally an employee only has the right to claim compensation for unfair dismissal as compensation for the termination of employment, recent case law criteria provides compensation for moral damages, emergent damages, loss of profits and "punitive damages" to employees who are subject to unfair dismissal where there is evidence of malicious conduct by the employer.
In addition to the compensation for arbitrary dismissal provided by law, judges are recently admitting claims for compensation for damages arising from dismissal. Such compensation is generally based on the concepts of emergent damages, loss of profits and moral damages, the amount of which must be determined by the Court. Additionally, judges have established the right of fired workers to demand a new concept called “punitive damages”, the amount of which equals the amount that the worker stopped contributing to the pension system during the time he was laid off.