Information
Cet article a été publié le 31 May 2023. Son contenu peut ne plus refléter l'état actuel du droit.
Decree 2023-275 of April 17, 2023 perfects the procedure for implementing the presumption of resignation, created by the law on the labor market, and thus enables this new system to come into force, it being specified that the Ministry of Labor's Q&A, which has been criticized, provides clarifications.
It is clear that the aim of this system is to deprive employees who give up their jobs of the right to unemployment insurance.
- On the implementation of this system
Article L 1237-1-1 of the French Labor Code stipulates that 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 within the time limit set by the employer is presumed to have resigned. The employee may contest the termination of his employment contract by bringing the matter before the industrial tribunal (Conseil de prud'hommes), which gives its decision within one month.
Under these conditions, in order to validly presume that the employee has resigned, it will be necessary
to establish that the latter voluntarily and without justification abandons his workstation and
does not return to his position after having been given formal notice, it being specified that the said formal notice must :
- be sent
by registered letter with acknowledgement of receipt or
by hand-delivered letter with acknowledgement of receipt;
- order the employee
to justify his absence and
return to work within a certain timeframe.
The time limit given to the employee
may not be less than 15 days, it being specified that it is calculated in
calendar days and starts to run from the first presentation of the formal notice.
Content of the letter: it should set out
the main points of the procedure and specify
the consequences of inaction at the end of the deadline (termination of the employment contract due to the presumed resignation, absence of unemployment benefits, etc.). On this point, it is also advisable to specify to the employee whether or not the employer intends him to serve his notice period, and to remind him that his silence on the organization of a possible notice period will manifest his intention not to serve it.
Secondly, if the employee wishes to invoke
a legitimate reason to overcome the presumption of resignation, he must do so in response to the formal notice sent to him. Although there are no formal requirements for this return, it is nevertheless preferable to request it in writing.
The Ministry of Labor
seems to require the employee to invoke a legitimate reason for absence.
and
that it provides justifications, either in the form of a document attached to its reply, or in the form of detailed factual information to be included in the letter.
(Examples of legitimate reasons cited by the Decree (non-exhaustive list): medical reasons (state of health), exercise of the right of withdrawal, etc.). or the right to strike, the employee's refusal to carry out an instruction contrary to regulations, or the modification of the employment contract at the employer's initiative).
If the employee responds to his employer's formal notice by justifying his absence from work with a legitimate reason, the procedure for presuming resignation need not be completed.
In our opinion, as this is a simple presumption of resignation, the employee's failure to respond to the formal notice does not deprive him of the right to contest the termination before the Conseil de prud'hommes.
In addition, the Ministry of Labor specifies that the employee must be considered to have resigned as of the last date for returning to work set in the formal notice.
Note: the Ministry of Labor states that the employer is not obliged to give formal notice to an employee who has voluntarily abandoned his or her workstation, but, in its view, if the employer wishes to terminate the employment relationship, he or she must implement the formal notice procedure and the presumption of resignation, thus totally excluding the procedure for dismissal for misconduct.
Going beyond the terms of the texts, this analysis is a real source of legal uncertainty.For this reason, two appeals for excess of power were lodged with the Conseil d'Etat. Further details will be provided shortly by the highest court. In the meantime, although the Ministry of Labor's QR does not have the force of law and, in our opinion, the presumption of resignation is only one of several tools available to employers, we still recommend that you remain vigilant on this point while awaiting the Conseil d'Etat's decision.
- Consequences of the presumption of resignation
The notice period is payable by the employee Resignation: the rules of ordinary law relating to notice periods in the event of resignation apply to the employee presumed to have resigned, it being specified that the notice period for resignation starts to run from the last day set by the employer for the return to work of his employee who has abandoned his post, this day being set in the formal notice sent by the employer to his employee.
Possibility of dispensation or agreement: The employer may dispense with the employee's notice period. In this case, the employer must pay the employee compensation corresponding to the wages he would have received had he been able to serve the notice period.
Clearly, an employer who applies the presumption of resignation has no interest in exempting the employee from the notice period...
In addition, the employer and employee may agree to waive the notice period. In this case, no compensation is due.
Penalties for non-performance: if the notice period is not served at the employee's initiative, no compensation will be paid.
to the employee a compensatory indemnity corresponding to the sums that the employee would have received if he had served his notice period.
Reminder: to do so, the employer must in principle refer the matter to the Labour Court (Cass. soc. 18-6-2008 n°07-42.161 FS-PB), and the employee may be condemned, even if the employer has not suffered any prejudice (Cass. soc. 24-5-2005 n°03- 43.037 F-P). In addition, the employee may make a counterclaim on this point if the CPH has been seized by the employee to contest the presumption of resignation, for example.
Issuing end-of-contract documents: the Pôle emploi certificate must state the exact reason for termination of the employment contract, i.e. "resignation", as does the DSN.
Our teams remain at the disposal of employers who would like support in implementing this new system!
