Presumption of resignation in the event of desertion of one’s post: what are the risks for employers and employees?
As part of the draft law on emergency measures relating to the functioning of the employment market, a presumption of resignation has been introduced for employees who voluntarily abandon their posts.
Article L1237-1-1 will shortly be inserted into the French Labor Code, providing that “an employee who has voluntarily abandoned their post and does not return to work after having been given formal notice to justify their absence and return to their post, 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”.
In this case, “the case is brought directly before the court, which rules on the nature of the termination and the associated consequences. It will rule on the merits of the case within one month of the case being referred to it”.
Below are the main limitations of this measure, which in our view exposes both employers and employees to major legal risks.
A lack of jurisdictional guarantees for employees
A procedural timeframe that is untenable in practice, and a factor of precariousness for employees
In the event of an employee contesting the termination of an employment contract, it is unlikely in practice – particularly in the case of “prise d’acte” – that a decision will be handed down by the industrial tribunal within the one-month time limit.
As a result, the presumed resigning employee, deprived of replacement income, could face financial difficulties in the short, or even medium term.
Possible neutralization of the right of withdrawal
If the employer perceives the withdrawal as an abandonment of post, the exercise of this right, which is essential in cases of proven serious and imminent danger, could initially be rendered ineffective.
In the event of a dispute, the judge’s control would only intervene a posteriori, without hindering the effects of the presumption.
A possible contradiction with case law, according to which resignation cannot be presumed, and with ILO Convention 158
Article 3 of this Convention defines dismissal as “the termination of the employment relationship at the initiative of the employer”.
However, in the context of the mechanism currently before parliamentarians, the presumption of resignation stemming from the employer’s unsuccessful formal notice, the employer is indeed the initiator of the various stages leading to the termination of the employment relationship.
For the purposes of the Convention, abandonment of post is not equivalent to resignation, although the ILO does not consider that the Convention applies in the case of voluntary resignation by the employee.
A major risk of litigation for employers
While this is fundamentally a question of entitlement to unemployment benefit, the legislator (who is seeking in particular to subtract abandonment of post from the separation rate) places the risk on the employer, who will in reality have to choose between dismissing the employee or using this presumption of resignation.
The problematic notion of voluntary abandonment of post
The employer will necessarily find themselves in an area of risk, as they will have to demonstrate the employee’s intention to abandon their post.
In practice, the employer will have to question the employee’s behavior: abandonment of post (i.e. prolonged absence without prior authorization) or irregular absence not covered by the new provisions?
The voluntary nature of the abandonment will be subject to interpretation by the courts, who will probably validate various cases in which the employee does not necessarily commit a fault when absent without authorization (to consult a doctor, in the event of a fuel shortage, etc.).
A further difficulty will arise in connection with changes to the employee’s position or assignment.
Indeed, if the employee refuses, considering that the contract has been modified and that it is simply a change in working conditions, and the employer considers that it is a voluntary abandonment of post, the employer is likely to be exposed to the subsequent appraisal of the judges, and will thus be subject to a considerable judicial hazard.
The undetermined effects of reversing the presumption
In the event of a reversal of the presumption by the employee, the new provisions do not specify the scope of the rejection, once again exposing the employer to regrettable legal uncertainty.
Indeed, in this case, the financial consequences will be significantly different depending on whether the resignation has the effects of a dismissal without real and serious cause, or of a null dismissal (allowing the application of the “Barème Macron” to be set aside).
As a reminder, in the latter case, the judge could award the employee compensation payable by the employer, which could not be less than the last 6 months’ salary, as well as sums in compensation for unpaid remuneration between the termination of the contract and the decision to reinstate the employee, compensation in lieu of notice, and reimbursement of unemployment benefits awarded to the employee.
The emergence of new litigation risks following the abolition of unemployment benefits
With unemployment benefits being abolished to a greater extent, it is not impossible that many employees will end up having to remain at work, in a conflict situation, or even file excessive sick leave.
In such cases, the introduction of a presumption of resignation could make it more difficult to deal with disruptive employees, who would then seek other means of receiving unemployment benefits (contractual termination, serious misconduct, etc.), under conditions that could be contentious and give rise to subsequent litigation before the industrial tribunal.
As it stands at present, this new system will bring about significant changes in the law governing unilateral termination of employment contracts.
In view of this, and subject to the regulatory provisions that will be issued at a later date to specify certain implementation procedures, we feel it is necessary to anticipate the main difficulties that are bound to arise.
With this in mind, and in order to provide the best possible security for the various situations of employers and employees, our lawyers are at your disposal to answer all your questions and advise you. Our meetings can be held in person or by videoconference. You can make an appointment directly online at www.agn-avocats.com.
AGN AVOCATS – Employment Law Department
09 72 34 24 72