Presumption of resignation for abandonment of position: clarification by decree and the Ministry of Labor

Simple presumption of resignation in the event of abandonment of position

The presumption of resignation mechanism, created on 23 December 2022, has now been supplemented by a decree. Under this new system, an employee who voluntarily abandons his/her position and does not return to work within a period specified in a formal notice to justify his/her absence and return to his/her position is presumed to have resigned (article L.1237-1-1 of the French Labour Code).

The minimum period for returning to work is set at 15 days by article R.1237-13 of the French Labour Code, which came into force on 19 April 2023. It begins to run from the date of presentation of the employer's formal notice.

The Ministry of Labor set out the conditions for implementing this new procedure in a Q&A dated 18 April 2023. This is a useful clarification of the system, although it is not binding before the courts. The presumption of resignation procedure remains optional for the employer, according to the Ministry of Labor (QR 1). The company can therefore renounce to the formal notice and wait for the employee to return to work. In the meantime, the employee's employment contract is suspended and no remuneration is due.

On the other hand, according to the Ministry of Labor, if the employer wishes to terminate the employment relationship, he must implement the formal notice procedure and the presumption of resignation, and is not required to initiate a dismissal procedure for misconduct (QR 2). However, as this principle is not provided for in the Labour Code, it has yet to be confirmed by the courts.

The Ministry of Labor's Q&A also provides the following clarifications:

Content of the formal notice sent by the employer

According to the Ministry of Labor, the formal notice must specify to the employee who has abandoned his/her position the terms and consequences of the procedure against him/her (QR 2).

One of the key point to watch will be the treatment of any non-compete clause, which we believe should be settled within the formal notice. This is recommended in order to avoid a late waiving of the clause, since if the employee does not respond to the formal notice or indicates that he/she does not want to return to his/her position, his/her resignation will be effective on the final return date set by the employer (QR 5).

Possible response from the employee / justification

As resignation is not subject to any legal formalities, the Ministry of Labor consider unnecessary for the employee to confirm his/her resignation in writing, even if the collective bargaining agreement normally requires a written resignation (QR 6).

To overcome the presumption of resignation, the employee may justify his/her absence with a legitimate reason, which he/she must indicate to the employer in response to the formal notice.

There is a (non-exhaustive) list of legitimate reasons, such as medical reasons, the exercise of the right of withdrawal, the exercise of the right to strike, the employee's refusal to carry out an instruction that is contrary to regulations, or the modification of the employment contract at the employer's initiative (article R1237-13 of the Labour Code). There is no obligation under the Code to produce evidence in support of a legitimate reason, although the French Ministry of Labor requires the employer to be provided with a medical certificate dated the day the employee abandoned his/her position (QR 4).

If the employee responds to the formal notice by justifying his/her absence by a legitimate reason, the procedure of presumption of resignation will not have to be completed (QR 4). However, disputes can arise in such a situation, as the legitimacy of the reason given may give rise to differing assessments between employer and employee.

Furthermore, even if the employee does not justify his/her absence by a legitimate reason, we believe that he/she will be able to contest the termination of his/her contract before the Labour Court, as this is a simple presumption of resignation.

Consequences of the presumption of resignation procedure

In the event of presumption of resignation, the employee's employment contract is terminated at the end of the period set by the employer in the formal notice.

As regards the notice period, the ordinary rules apply (QR 7). Thus, an employee who abandons his/her position and refuses to serve the notice period is not entitled to compensation in lieu of notice. The employer may even lodge a claim to the Labour Court in order to seek reimbursement of the remuneration he would have received if he/she had worked during his/her notice period (QR 8).

The employee is not eligible for unemployment indemnities paid by the French Unemployment Fund (QR 12).

Authored by Marion Guertault, Hélène de Nazelle and Sibille Bouëssel du Bourg.