Presumption of resignation in the event of job abandonment by an employee: a controversial measure

The law on emergency measures relating to the efficiency of the labour market with a view to full employment was definitively passed on 17 November 2022.
 
One of the controversial provisions of this text is the new article L. 1231-1-1 in the Labour Code which introduces a presumption of resignation in case of the abandonment of position by an employee.
 
This measure was put in place to align the consequences of abandoning one's post with those of resignation and thus deprive the employee of unemployment benefits. Some people thought it unfair that national solidarity should cover the loss of employment of an employee who abruptly left their job and thus caused the termination of the employment contract.
 
However, the application of the new provisions seems likely to be a source of many uncertainties and risks for employers.
 

 
According to case law, abandonment of post implies that the employee suddenly leaves the workstation before the end of their shift, without any apparent or legitimate reason and without informing the employer (Cass. Soc. 28 mai 2014, n°12-28.457). 
 
It must be distinguished from a related concept: unjustified absence. Unjustified absence occurs when the employee fails to report to work without having informed the employer. In other words, unlike abandonment of post, the employee does not leave work before the end of the shift, nor do they report to work at the beginning of the shift.
 
The new text only covers abandoning one's post and not failing to report to work. There is therefore some uncertainty about the scope of the future measure and it will be interesting to see whether the courts apply it extensively to unjustified absences.
 

 
Until now, it was established case law that resignation was not presumed (Cass. Soc. 7 mai 1987, n°84-42.203) and that abandoning one's post was not equivalent to resignation. To avoid disagreements and misunderstandings, resignation had to be the result of a clear and unequivocal act.
 
From now on, a presumption of resignation will exist if three cumulative conditions are met:

 
If this is the case, the employee who has not responded to the employer's formal notice will be presumed to have resigned and will therefore not be entitled to unemployment benefits.
 
The text does not specify the date on which the termination will take effect: the date of the employer's formal notice, the date on which the period for returning to work expires or another date.
 
 
In order to reverse the presumption, it is the employee's responsibility to prove that there is a legitimate reason for abandoning their post (illness, imprisonment, etc.).
 
The employee must then take the matter to the labour court, which must rule on the merits within one month. In practice, such a time limit is likely to be difficult to apply given the congestion of the courts. It is therefore likely that the employer will have to bear the uncertainty of the outcome of this departure for several months.
 
If, at the end of this procedure, the presumption is  reversed, the employer who wrongly terminated the employment contract with a silent employee could find itself having to pay:

 
On the other hand, if the presumption holds, the text does not indicate whether it will be possible for the employer to request that the employee be ordered to pay the notice period, as is in the event of a constructive dismissal.
 

 
In these circumstances, we believe that the employer should be very careful in drafting its various letters to ensure that it has given the employee sufficient time to justify the reason for the absence.
 
It may be preferable in some cases to continue with dismissal (on the grounds of unjustified absence rather than abandonment of post) in order to reduce the employer's risk of having to pay damages after the termination.