Article L. 1237-1-1 of the Labour Code now provides that an employee who has voluntarily abandoned his or her post and does not return to work after being given formal notice to do so is presumed to have resigned. This formal notice may be given by registered letter or by letter delivered by hand against receipt.
The minimum period allowed for the employee to return to work is 15 days from the date of presentation of the registered letter or the letter delivered by hand against a receipt (Article R. 1237-13).
At the end of this period, the employee is presumed to have resigned. The legislative, conventional and case law rules on resignation must therefore be applied.
1. Is the employer obliged to send a formal notice if the employee abandons his post?
No, the employer may decide not to send a formal notice to an employee who has voluntarily abandoned his post. In this case, the employer keeps the employee on the payroll. The employee’s employment contract is not terminated but only suspended; the employee’s remuneration is therefore not due.
On the other hand, if the employer wishes to terminate the employment relationship with the employee who has abandoned his post, he must implement the procedure of formal notice and presumption of resignation. He is no longer entitled to initiate a procedure for dismissal for misconduct.
2. What must the employer specify in the formal notice?
The employer must indicate in the notice of default the time limit within which the employee must return to work. He must also ask the reason for the employee’s absence in order to obtain the justification for this absence.
The period given to the employee to return to work must not be less than 15 days, which must be understood as calendar days (i.e. including weekends and public holidays) from the date of presentation of the registered letter or the letter delivered by hand.
The employer must also point out that after this period, if the employee fails to return to his post, he will be presumed to have resigned.
The employer can specify in the notice the consequences of the employee’s refusal to return to work within the period set by the employer: the employee will be considered to have resigned and will not be entitled to unemployment insurance benefits.
It is also recommended that the employer specify in the notice that the employee who does not return to work by the date set is liable to pay a notice period, and that he/she make provision for the organisation of the execution of this notice. The employer may also point out that the employee’s silence on the organisation of the possible notice period may constitute a manifestation of his refusal to execute the notice period.
3. What if the employer does not receive proof of receipt of the formal notice sent to the employee?
As with the summons to the interview prior to dismissal, sending the notice by registered letter prevents any dispute over the date of delivery of the notice. Also, if the employee refuses to take cognizance of the formal notice, the latter is still duly notified as long as it was indeed presented at the employee’s home.
The same applies if the employee, through negligence, has not provided his employer with the correct address.
It is recommended that the employer give notice to the employee by registered letter with acknowledgement of receipt, in order to avoid as much as possible any dispute about the date of presentation of the notice.
4. What are the reasons for abandoning one’s post for which the procedure of presumption of resignation does not have to be completed?
If the employee responds to the employer’s formal notice by justifying his or her absence from work with a legitimate reason, the procedure for presuming resignation should not be completed.
Furthermore, the employer must take care to protect employees who may, on this occasion, report a situation of danger, and not complete the procedure for presuming resignation in this case.
For example, if the employee alleges the existence of a serious and imminent danger to his or her life and health, he or she is entitled to exercise the right of withdrawal provided for in Article L. 4131-1 of the Labour Code, and his or her absence is legitimate. Consequently, the procedure for presuming resignation will not apply.
The same applies if the employee’s absence is justified by his state of health and he was absent to consult a doctor who prescribed a work stoppage for the same day. In this case, the employee must provide a medical certificate dated the day he/she left work. In this case, in view of the evidence provided, the procedure for presumption of resignation will not apply.
The mechanism of presumption of resignation should not apply either when the employee is on strike within the meaning of Article L. 2511-1 of the Labour Code, when the employee is absent because he or she refuses to carry out an instruction contrary to a regulation, or when a modification of the employment contract at the employer’s initiative is refused by the employee.
5. What are the consequences if the employee does not respond to the formal notice, or responds that he/she does not wish to return to his/her post? At what point is the employee considered to have resigned?
If the employee does not respond to the formal notice and does not return to work by the date set by the employer, he/she will be presumed to have resigned. The employee’s resignation will be established on the last date for resuming work set by the employer.
If the employee responds to the employer’s formal notice that he will not return to work in the company, he will also be deemed to have resigned on the last date for returning to work set by the employer.
6. If a collective agreement provides that an employee’s resignation must be in writing, does this requirement apply in the context of the presumption of resignation in the case of voluntary abandonment of post by the employee?
Resignation is not subject to any legal formalism. It may therefore be in writing or orally, provided that it is clear and unequivocal. Although some collective agreements require the employee to produce a written document in order to express his or her intention to resign, the case law of the Cour de cassation has considered that this type of provision only establishes a rule of form, the disregard of which does not call into question the employee’s decision.
In the specific case of the presumption of resignation in the event of an employee abandoning his post, the employer is not obliged to ask the employee who has not responded to the formal notice to produce a written resignation.
However, in order to ensure that this arrangement is more easily understood, it is recommended that collective agreements be updated to explicitly state that the requirement for resignation to be expressed in writing does not apply in the context of the presumption of resignation in the event of the employee voluntarily abandoning his or her post, as provided for in Article L. 1237-1-1 of the Labour Code.
7. Is a notice period due by the employee presumed to have resigned?
If the employee has not responded to the employer’s formal notice to return to his post or has responded in the negative to this formal notice, he is presumed to have resigned. Therefore, the rules of ordinary law concerning the notice period in case of resignation apply.
Therefore, notice of resignation is due if provided for by law or agreement. In the absence of legislative or contractual provisions, local and professional practice may provide for such notice. Otherwise, no notice is due.
8. How is the notice period for resignations executed?
According to the law, an employee who is asked by the employer to serve notice of resignation must comply with it. In this case, the employee performs his work normally until the notice period expires. If the employee does not serve the notice period, the employer may ask the employee to pay compensation for the amount of money the employee would have received if he had served the notice period.
It is likely that in the case of an employee who has abandoned his post and has not responded to the employer’s formal notice, the employee will refuse to serve the notice period. In this case the notice period will not be executed and the employer will not have to pay the employee any compensation.
There are also two other situations in which the notice period for resignation may not be executed:
The employer may exempt the employee from serving the notice period, in which case the employee must receive compensation for the wages he would have received if he had been able to serve the notice period;
The employer and the employee may agree that the notice period is not to be served: in this situation no compensation is due; the formal notice sent by the employer to the employee may in this case serve as a starting point for the conclusion of such an agreement.
9. What is the starting point of the notice period for resignation?
The notice period for resignation starts to run from the last day set by the employer for the employee to return to work after abandoning his post. This day is fixed in the notice sent by the employer to the employee.
10. Do the end-of-contract documents have to be given to the employee?
As for any resignation, the employer is obliged to give the employee the documents at the end of the contract:
Certificate of employment ;
Receipt for final pay;
Unemployment insurance certificate.
The employer must therefore mention “Resignation” as the type of termination of the contract, while the employee must be given the following documents
11. Is the employee presumed to have resigned entitled to holiday pay?
Yes, the paid holidays generated but not taken by the employee must be the subject of a compensatory indemnity, the amount of which is mentioned on the receipt of the final balance.
12. What are the consequences of abandoning one’s post in terms of entitlement to unemployment insurance?
Refusal to return to work after formal notice from the employer is considered as a resignation at the end of the period set by the employer.
However, resignation does not give entitlement to unemployment benefit. There are some exceptions to this principle, for resignations considered legitimate (for example, in the case of geographical mobility to join a spouse).
The legitimate nature of the resignation must be justified to Pôle Emploi.
13. What remedies are available to an employee who considers the application of the presumption of resignation to be unfounded?
In accordance with the law, the employee may appeal to the industrial tribunal to contest the application of the presumption of resignation. In this case, the case is brought directly before the court. The judges will then have one month to rule on the merits of the case.
In addition, beyond the litigation procedure, an employee who believes that the application of the presumption of resignation is unfounded can call on an employee representative organisation to provide advice and assistance or on a lawyer.