Labour market bill: towards a new way of breaking up?

The draft law on the labour market was adopted by the deputies on 6 October.

During the examination of the text in the Social Affairs Committee, although this subject was not on the agenda, the abandonment of post came up in the discussions. Indeed, when analysing the measures concerning unemployment insurance, the MEPs proposed, by way of amendment, to create a new article in the Labour Code, thus considering that abandoning one’s post does not constitute involuntary unemployment.

With this new provision adopted in the public session and inserted into the bill, there is a desire on their part to provide a framework for the abandonment of post, in an attempt to secure this practice often used by employees.

As this is a bill, the measures mentioned may still be subject to change, given that the senators will examine this text from 25 October 2022.

As a reminder, to date, abandonment of post is not defined by any text and must be clearly distinguished from other situations such as, in particular, justified or belatedly justified sick leave, an act of termination, a request for judicial termination or even a resignation.

In the end, the difficulty arises from the fact that in practice the employer, when faced with the abandonment of a post by one of his employees, can only dismiss him, often for serious misconduct, or keep him on the payroll, continuing the contractual relationship without the latter being paid, forcing him to draw up zero or negative pay slips.

Clearly, what does this new article L.1237-1 of the Labour Code provide?

It provides that abandonment of post constitutes a simple presumption of resignation, since it is worded as follows: ” An employee who has voluntarily abandoned his or her post and does not return to work after having been given formal notice to do so, by registered letter or by letter delivered personally against a receipt, is presumed to have resigned. An employee who challenges the termination of his employment contract on the basis of this presumption may refer the matter to the industrial tribunal. The case is brought directly before the adjudication board, which decides on the nature of the termination and the associated consequences. It shall decide on the merits of the case within one month of its referral. A decree in the Council of State shall determine the procedures for the implementation of this Article “.

As a result, the main objectives pursued by the creation of this new provision are

• On the one hand, an employee who gives up his or her job can no longer receive unemployment benefit,
• On the other hand, to limit employees’ recourse to the practice of abandoning post when they want their employment relationship to end.

The employer would therefore no longer have to dismiss an employee who had abandoned his or her post, since the latter would be considered to have resigned. Finally, it would seem that this abandonment of post becomes a form of “prise d’acte” for the employee who could then take the matter to the Conseil de prud’hommes to reverse the simple presumption of resignation.

However, in line with well-established case law on abandonment of post, this provision would not apply to employees leaving their post for health or safety reasons.

A decree will have to provide clarifications which are already necessary in view of the many questions relating to the applicability and necessity of this new system!

First of all, it is recalled that, in principle, resignation must be the result of a clear and unequivocal desire to terminate the employment contract and cannot therefore be presumed. To date, resignation cannot be the result of the employee’s behaviour alone, since the Courts consider that if an employee’s attitude may seem ambiguous as to whether he really wants to continue the performance of his contract, as long as he has not shown a clear and unequivocal will to break the contract, the employer must not consider him as having resigned.

Thus, by introducing a presumption of resignation, this tends to implicitly call into question the very definition of resignation.

In these circumstances, it is conceivable to wonder about a possible return of the case law of the Court of Cassation on resignation, which may have considered that, in certain circumstances, resignation could result from the employee’s behaviour. For the record, the highest court had in fact accepted that abandoning one’s post constituted a resignation in the case of an employee “. who, having expressed his wish to leave the company, no longer reports to work but asks to be dismissed in order to receive unemployment benefits “(Cass. Soc., 24 Nov. 1999, n°97-44.183).

This new provision could therefore completely upset the balance of the law on unilateral termination of the employment contract and put an end to clear and unequivocal resignation…or at least to what is to be understood by these two terms, which could therefore be accepted when, although tacit, the will is induced by sufficiently explicit behaviour.

Secondly, the latest wording of the amendment that gave rise to the wording of Article L.1237-1 of the Labour Code clearly shifts the risk onto the employer, since to date it is gave the employer a choice: dismiss the employee or apply the new presumption of resignation. unless this new system evolves and ends up depriving the employer of this option completely.

Thus, the responsibility lies entirely with the employer as regards the deprivation or not of unemployment benefits, which, by the same token, also places the employer at risk of being ordered to pay compensation for the damage suffered by the employee who has been unjustly deprived of these benefits.

This new procedure therefore appears risky, especially in view of the interpretation that will be made of this text, since a strict application of the voluntary nature of the abandonment will require the employer to be able to prove the employee’s intention in the event of a dispute, which in practice can be complicated, whereas, except in special cases, dismissal for unjustified absence secured by one or more prior formal notices very rarely leads to convictions in the event of litigation.

Also, if the resignation is invalidated, it is possible to wonder about the consequences. Will the employer be condemned for dismissal without real and serious cause?

Concerning the notice period, the principle would be that if the abandonment of post leads to a presumption of resignation, then the employee will be obliged to execute the notice period. Thus, under the control of the judge, will the employer be able to claim the payment of the indemnity in lieu of notice from the employee?

In addition, another point has been left out so far, namely the procedure to be followed at the end of the employment contract. However, this point appears fundamental, insofar as this new procedure could clash with certain contractual provisions which provide, for example, that the resignation must be in writing. Should the employer send the employee a letter formalising this presumption of resignation? Will the employee also be deprived of the portability of the pension scheme?

Finally, as currently drafted, if a parallel is drawn with the procedural deadlines set by the industrial tribunals for taking action to terminate a contract, it is almost certain that the one-month deadline given to the judges to rule will be difficult to meet. It is therefore conceivable that new procedural safeguards could be introduced to protect employees who are presumed to have resigned – insofar as they receive nothing pending resolution of the dispute.

There are therefore many unanswered questions to date, which we hope the senators will answer when they examine this “new way of breaking up” on 25 October.

Nevertheless, although uncertain and open to improvement, this new system will have the merit of putting an end to a means of pressure which many employees have used in order to make their employer bear both the initiative and the possible responsibility for a breach of contract which he or she did not want.