The law of 25 June 2008 and its implementing decree of 18 July 2008 improve the system of legal compensation for dismissal. These new measures apply in the absence of a more favorable contractual or contractual provision.
The seniority requirement is reduced from two years to one year in order to benefit from the legal compensation for dismissal (uninterrupted seniority in the service of the same employer, which is assessed on the date of dispatch of the dismissal letter).
The amount of legal compensation is now identical regardless of the reason for the dismissal. The decree fixes this amount at 1/5 of salary per year of seniority, plus 2/15 of salary per year of seniority beyond 10 years. As before, the number of years and months of seniority is assessed at the end of the notice period.
This amount is therefore unchanged in the event of dismissal for economic reasons. On the other hand, it is equal to twice the previous amount in the event of dismissal for personal reasons.
No change, however, on the fact that compensation is not due in case of dismissal for serious or serious misconduct.
The modification of the amount of the legal compensation of dismissal entails that of the amount of other indemnities which are calculated according to it:
- the legal compensation paid in the event of the retirement of an employee on the initiative of the employer: its amount is identical to that of the legal compensation for dismissal
- the special severance pay paid in the event of termination of the employment contract resulting from an industrial accident: this is equal to twice the statutory severance pay and is henceforth equal to 2/5 of a month's salary per year seniority + 4/15 of months of salary per year beyond 10 years of seniority
In the absence of details, the law and the decree are applicable the day after their publication in the Official Journal. The law came into force on June 27, 2008 and the decree on July 20, 2008.
However, there is the question of the procedures for dismissal in progress at that date. The case law considers that the legal regime in force on the date of notification of the dismissal, that is to say on the date of sending the registered letter of dismissal, must be applied. The date of the advance interview and the end date of the notice are not taken into account.
- the lowering of the seniority requirement applies to dismissals notified as from 27 June 2008
- the change in the amount of the statutory severance pay applies to dismissals and retirements notified as from 20 July 2008
Thus, an employee dismissed for personal reasons before July 20 and in notice at that date can not claim the new amount of the statutory severance pay.