The presumption of resignation for abandonment of post has not finished making headlines

Since April 19, 2023, and in application of article L.1237-1-1 of the French Labor Code, created by the so-called “labor market” law of December 21, 2022, an employee who voluntarily abandons his post without returning to work after having been given formal notice by his employer is presumed to have resigned.

The practical details of this scheme – the stated aim of which is to deprive employees who deliberately abandon their jobs (by means of what could be described as “self-termination”), in order to move quickly towards new professional and/or personal horizons, of their rights to unemployment benefits – were specified by Decree no. 2023-275 of April 17, 2023, as well as by a “Questions-Réponses” published by the Ministry of Labor on the following April 18.

How does it work?

Henceforth, an employee who fails to return to work after having been given formal notice to justify his absence and return to work, by registered letter or by hand-delivered letter against receipt, within the time limit set by the employer, is presumed to have resigned on expiry of this time limit.

Article R.1237-13 of the French Labor Code stipulates that the aforementioned period may not be less than 15 days (calendar days, unless otherwise specified) from the date of formal notice, and gives a non-exhaustive list of reasons for legitimate absence: medical reasons, exercise of the right of withdrawal or the right to strike, refusal by the employee to carry out an instruction contrary to regulations, modification of the employment contract on the employer’s initiative.

If the employee provides such a reason, the procedure for presumption of resignation cannot be completed, and the employer must then simply deal with the employee’s legitimate absence by suspending payment of his remuneration, with the employee returning to his post at the end of his absence.

Apart from these listed cases, it is up to the employer to assess whether the justification put forward by the employee – although not included in the legal list – is “legitimate” (the said list will therefore necessarily be supplemented by case law) and able to justify its absence, before deciding whether or not to pursue the presumption of resignation procedure.

Given the novelty of this system, a number of questions could be anticipated, which the Ministry of Labor intended to answer by distributing a (now very popular) “Questions & Answers”, after the decree had been published:

• “Is the employer obliged to send a formal notice if his employee abandons his post?”
• “What should the employer specify in the formal notice?
• “Is notice due by an employee presumed to have resigned?”
• “What are the consequences of abandonment of post in terms of entitlement to unemployment insurance?
• Etc.

What happens to dismissal for abandonment of post?

It is on the question of whether the employer retains the option of resorting to the usual procedure of dismissal for abandonment of post that the Ministry’s Q&A has created controversy by answering in the negative:

” […] if the employer wishes to terminate the employment relationship with an employee who has abandoned his post, he must implement the formal notice and presumption of resignation procedure. He can no longer initiate dismissal proceedings for misconduct.. “.

Case law, on the other hand, has long recognized that abandonment of post may justify dismissal for misconduct on the part of the employee, particularly for serious misconduct depending on the circumstances, and also considers that abandonment of post without explanation or justification does not characterize the employee’s clear and unequivocal intention to resign.

According to this Q&A, and contrary to this case law, the employer’s only choice in the event of abandonment of post would be :

• or implement the procedure for presumption of resignation,
• or to keep the employee on the payroll by simply suspending payment of his salary…!

This is despite the fact that neither the law nor its implementing decree excludes the possibility of the employer choosing the dismissal option, and that the second of these texts even seems to go in the opposite direction when it states: “… the employer may choose the dismissal option. an employer who ascertains that an employee has abandoned his post and intends to invoke the presumption of resignation […]. “. If the employer intends to invoke the presumption of resignation, he must follow the relevant procedure; otherwise, he retains the option of dismissing the employee, whose unjustified absence clearly constitutes a disciplinary reason justifying dismissal.

Besides, who could blame the employer for having implemented a dismissal procedure and not having intended to make use of the presumption of resignation? Certainly not the employee who, as a result of his dismissal, even for gross misconduct, will be able to claim unemployment benefits. Pôle Emploi, which would claim from the company the amount of unemployment benefits paid to the dismissed employee, which would require it to check the grounds for the dismissal as notified to the employee, without being authorized to do so by any text whatsoever, This would require the employer to check the reasoning behind the dismissal as notified to the employee, without being authorized to do so by any text whatsoever, given that the employer can, as things stand, simply mention “dismissal for (serious) misconduct” on the Pôle Emploi certificate, and is under no obligation to communicate the precise reason for the dismissal?

While this Q&A document has no normative/imperative value (and falls under so-called “soft law”), the Ministry of Labor’s interpretation of the legal text undeniably creates legal uncertainty.

As a result, at the end of April 2023, the Conseil d’Etat was asked to annul the Questions-Réponses document on the grounds of excess of power.

And on May 29, the Ministry withdrew all the Questions & Answers from its website, with the Minister’s entourage indicating a few days later that :

“In view of the questions raised by the FAQ, which were also raised in the context of the litigation against the FAQ before the Conseil d’Etat, it became clear that, contrary to the aim pursued, the FAQ did not, as it stood, make it possible to clarify the terms and conditions of application of the new legal framework“,

While confirming that the presumption of resignation replaces, and closes the door on, dismissal for misconduct…

While waiting for the situation to “stabilize”, it is in the employer’s interest to follow the procedure of presumption of resignation, especially in situations where the company knows it is protected from any litigation (for example, if it is certain that the employee has abandoned his or her position to take up another elsewhere). Nevertheless, we believe that disciplinary dismissal should be maintained if the employee’s abandonment of his or her post is accompanied by one or more other breaches observed shortly before or at the same time as the abandonment.

What are the legal risks for the employer?

Since the presumption of resignation is a simple one, the employee can challenge the employer’s application of it, arguing that he had a legitimate reason for his absence. The case is then referred directly to the tribunal, which decides on the nature of the termination and the associated consequences, within one month of the date of referral (a time limit which in reality is very theoretical in some industrial tribunals, as is the case for a decision on a “prise d’acte”).

In this context, a number of issues will arise about which the law and the decree are silent, in particular :

• Once the presumption of resignation has been rebutted, will the termination of the employment contract produce the effects of a null dismissal (unlikely, in application of the adage “no nullity without text”) or without real and serious cause?
• What will be the consequences of failure to comply with the minimum 15-day period given to employees to justify their absence, and therefore of a presumption of resignation applied prematurely by the employer?
• What about a protected employee in respect of whom the presumption of resignation has been applied and who claims to have committed an offence of obstruction and/or union discrimination? Will the Council find that the labor inspectorate’s authorization was lacking and declare the termination null and void, with all the attendant financial consequences for the company?

The answers will be provided by the judges, as the case progresses. And it is to be hoped that the Ministry of Labor, which is likely to publish a new Q&A, will venture cautiously into these contentious aspects, if need be…