Decree on presumption of resignation in the event of voluntary abandonment of post to come into force on April 19, 2023
As part of the reform of the unemployment insurance system, a presumption system has been created to combat voluntary abandonment of post by employees.
Essentially, an employee who voluntarily abandons his or her post and does not return to work after having been given formal notice to justify his or her absence and to return to his or her post within a period set by the employer (the starting point of which is the date of presentation of the formal notice) will be presumed to have resigned on expiry of this period.
Decree no. 2023-275 of April 17, 2023, which came into force on April 19, 2023, specifies, by way of indication, the legitimate reasons for not applying the simple presumption of resignation procedure.
These include :
- medical reasons ;
- the exercise of the right of withdrawal in the event of serious and imminent danger, or the right to strike;
- refusal by the employee to carry out an instruction contrary to regulations;
- modification of the employment contract at the employer’s initiative.
Following the decree, the questions and answers circulated by the Ministry of Labor mainly indicated that :
- the absence of any obligation on the part of the employer to send a formal notice if the employee has abandoned his or her post, while specifying that if the employer wished to terminate the employment relationship with the employee who had abandoned his or her post, he or she would have to implement the formal notice procedure and the presumption of resignation, since he or she would no longer be entitled to initiate dismissal proceedings for misconduct…
In any case, neither the above-mentioned Q&A nor, above all, the law prohibits employers from dismissing employees for abandoning their posts or for unjustified absences.
The formal notice must include the following information :
- the deadline by which the employee must return to work
- a request for the reason for the absence
- an indication that if the employee fails to return to work within this period, he or she will be presumed to have resigned
- a countdown in calendar days (after notification of the formal notice) of the minimum 15-day deadline
- the employee’s resignation will be recorded on the final date set by the employer for returning to work
- the ordinary rules of notice also apply in cases of presumed resignation.
In view of the forthcoming legal risks between employers and employees (in particular as regards the legitimate nature of the grounds for refusing the simple presumption of resignation procedure), but also with regard to Pôle Emploi, we are at your disposal to provide you with support and operational management – on a case-by-case basis – of future situations of abandonment of post.
We suggest that you make an appointment with us, so that we can offer you appropriate support. Our meetings can be held face-to-face or by videoconference. You can make an appointment directly online at www.agn-avocats.com.
AGN AVOCATS – Employment Department
09 72 34 24 72
