Since the order of September 22, 2017, compensation awarded in cases of dismissal without real and serious cause has been determined according to the scale set forth in Article L.1235-3 of the Labor Code, which establishes minimum and maximum amounts based on the employee’s length of service and salary. The Court of Cassation has provided interesting clarifications regarding the application of the MACRON scale.
Regarding the length of service to be considered
In a ruling dated October 1, 2025 (No. 24-15.529), the Labor Chamber of the Court of Cassation held that periods during which the employment contract was suspended due to illness must not be deducted from the employee’s length of service. Unlike the calculation of severance pay, for which the employer may deduct absences due to non-occupational illness, unless otherwise provided by collective agreement or contract, the employee’s seniority is therefore not affected by the absence of the employee for the purposes of applying the MACRON scale.
The Court of Cassation noted that the provisions of Article L. 1235-3 of the Labor Code contain no restrictions in the event of a suspension of the employment contract.
Regarding the reference period for calculating gross monthly pay
Article L. 1235-3 of the Labor Code, which establishes the compensation scale for dismissal without real and serious cause, refers to the concept of months of gross salary.
The former Article L. 1235-3 provided for the payment of compensation that it could not be less than the wages of the last six months.
The wording used in the new provisions of Article L. 1235-3 suggested that it would now be appropriate to refer to an average salary, rather than the salaries of the last six months. But what average salary ?
The Labor Chamber of the Court of Cassation settled this issue in a ruling dated March 18, 2026 (No. D 24-14757), specifying that the salary to be taken into account for calculating severance pay for dismissal without real and serious cause is determined, according to the formula most advantageous to the employee, by taking into account the monthly average of the last twelve months or one-third of the last three months, any annual or exceptional bonus or gratuity paid to the employee during this period being, in this case, taken into account only up to an amount calculated in due proportion.
The Court of Cassation thus applies for the calculation of compensation for dismissal without real and serious cause, the same reference salary as that provided for in Article R. 1234-4 of the Labor Code for the calculation of statutory severance pay.