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Job abandonment and resignation presumption: a new French law makes the link

Until now, when an employee abandoned their job, it generally required the employer to take the initiative to terminate the employee’s contract through a disciplinary dismissal procedure.

A new law voted by French Parliament on November 17, 2022 states that an employee abandonning their job should be presumed resigning.

The objective of this law is twofold:

  • First, it aims at ending “self-termination” (i.e., when an employee voluntarily leaves their position while waiting for the employer to dismiss them), in order to prevent the associated disruption;
  • Second, it aims at eliminating the difference of treatment between (i) an employee who has abandoned their position and can be compensated by the French unemployment insurance after being dismissed and (ii) an employee who resigns and is not entitled to any unemployment benefits.

Subject to the law being endorsed by the French Constitutional Court, a new article L. 1237-1-1 will be inserted in the French Labor Code. It will clearly provide that an employee who voluntarily abandons their position and does not return to work after having been given notice to justify their absence and to return to their position within the time limit set by the employer, is presumed to have resigned at the end of this time limit.

For such presumption to be effective, it thus implies:

  • a voluntary absence: if this job abandonment is forced (in the case of the employer’s misconduct, or the employee uses their withdrawal right for safety reasons), the resignation cannot be presumed;
  • a formal notice from the employer to the employee; if the employee does not respond, the procedure can continue. But if the employee gives a legitimate reason for their absence – in particular one of those mentioned above (health reasons, right of withdrawal, etc.), or returns to work, the resignation presumption no longer stands;
  • a minimum time period for the employee to answer or resume work, i.e., the employee will only be presuemd resigning if they have not replied or returned to work when the time period expires. A minimum time period will be set by a decree (yet to be published).

An employee who chooses to challenge the termination of their employment contract on the basis of this presumption may bring the case before the Employment Tribunal, without going through a conciliation hearing. The Labor Court will have to rule on the nature of the termination and its consequences within one month.