Présomption de démission en cas d’abandon volontaire de poste : modalités de mise en œuvre

Abandonment of post is not defined by law. In practice, it manifests itself through the behavior of an employee who leaves his or her workstation without the employer's authorization, or who is absent without justification during working hours.

Case law accepts that abandonment of post may justify dismissal for misconduct on the part of the employee, including serious misconduct depending on the circumstances (see for example: Cass. Soc. November 18, 2009, no. 08-43.473; November 2, 2016, no. 15-15.164).

On the other hand, the French Supreme Court has long held that abandoning a position without explanation or justification does not constitute a clear and unequivocal intention on the part of the employee to resign(Cass. Soc., November 17, 1999, no. 98-42.072).

In 2023, contrary to this case law, the legislator instituted this new procedure of presumption of resignation in the event of abandonment of post.

No.

The employer can only use the presumption of resignation if the abandonment of post is voluntary. This is not the case if there is a legitimate reason.

This is why articles L. 1237-1-1 and R.1237-13 of the French Labor Code require employers to ask employees to justify their absence.

It is then up to the employee who wishes to overcome the presumption of resignation to inform the employer, within the time limit set by the formal notice, of the legitimate reason for abandoning his post.

Article R.1237-13 paragraph 3 of the French Labor Code defines legitimate reasons as follows:

• medical reasons,
• exercising the right of withdrawal provided for in article L. 4131-1 of the French Labor Code,
• the exercise of the right to strike provided for in article L. 2511-1 of the French Labor Code,
• the employee's refusal to carry out an instruction contrary to regulations,
• modification of the employment contract by the employer.

Note: The list of "legitimate reasons" set out in article R. 1237-13 of the French Labor Code is not exhaustive. It will be up to jurisprudence to add to it.

In practical terms, if the employee provides a legitimate reason in his or her response to the formal notice, the presumption of resignation will no longer apply, and the procedure will cease.

No. The employer is free not to draw any consequences from the abandonment of post other than the withholding of wages. 

The Service-Public.fr website states: "The employer may decide not to give the employee formal notice to justify his absence and return to work. The employee's employment contract is then suspended. The employee is not paid during this period.

We think so.

The ministerial Questions-Réponses, withdrawn in June 2023 from the Ministry of Labor website, appeared to exclude the possibility of the employer initiating dismissal proceedings for misconduct in the event of the employee abandoning his post. The employer faced with a situation of abandonment of post would thus have had no other option, if he wished to consider terminating the employee's contract, than to place himself within the framework of the presumption of resignation.

The Q&A, which had no normative value, has now been removed from the Ministry of Labor website.

Articles L.1237-1-1 and R.1237-13 of the French Labor Code, while opening up a new means of terminating the employment contract for employers faced with voluntary abandonment of post, should not be read literally as excluding the employer's right to opt for dismissal for misconduct.

The fact remains, however, that one of the reasons for creating this system was to prevent employees who had given up their jobs from benefiting from a more favorable unemployment insurance situation than employees who had resigned.

In our opinion, the employer can decide whether or not to implement this procedure of presumption of resignation, and thus not to resort to it, preferring either to do nothing, or to initiate disciplinary proceedings that may go as far as dismissal for gross misconduct against the employee who has abandoned his or her workstation.

ATTENTION

In a decision dated March 6, 2025 (no. 24/02319), the Paris Court of Appeal ruled that the termination of an employment contract by the presumed resignation of a protected employee was null and void as it had taken place without seeking authorization from the labor inspectorate.

In particular, the Court held that "while it is accepted that the protective status does not apply when the employee decides to unilaterally terminate his employment contract, which is explained by the fact that the termination results from the sole will of the employee and does not involve the employer, on the other hand, the legal presumption of resignation, which involves the employer in the termination of the employment contract, does not exempt the latter from requesting the Labour Inspectorate, [...]".

Pending a ruling by the French Supreme Court (Cour de cassation) to clarify and harmonize case law in this area, employers considering using the presumption of resignation for an employee benefiting from special protection are advised to seek prior authorization from the labor inspectorate before considering that the employment contract has been terminated.

It is advisable to make this request after the expiry of the period allowed for the employee to justify his absence and return to his job. It is only then that the criteria for presumption of resignation can be deemed to have been met, enabling the labor inspector to make a fully informed decision.

Step 1: Formal notice to the employee

Articles L.1237-1-1 and R.1237-13 of the French Labor Code strictly govern the presumption of resignation in the event of abandonment of post.

In order to invoke this presumption, the employer must send the employee a formal notice of abandonment of post, in accordance with the conditions laid down in the French Labor Code, and clarified by case law.

The purpose of this formal notice is to ensure that the abandonment of post is indeed voluntary.

• Formalism

The law specifies that this formal notice must be sent by registered letter or by hand-delivered letter against receipt.

In practice, it seems to us that sending a formal notice by hand-delivery against receipt is not an easy option to implement, as the employee is by definition absent from his workstation. We therefore recommend proceeding by registered letter with acknowledgement of receipt.

• Contenu

In the light of articles L.1237-1-1 and R.1237-13 of the French Labor Code, theConseil d'Etat ruling of December 18, 2024 (no. 473640) and the ministerial FAQ which, although removed from the Ministry's website, retains definite relevance, the formal notice must :

• ask for the reason for the employee's absence (which may be a legitimate reason),
• specify the period within which the employee must return to work, which may not be less than 15 days from presentation of the formal notice,
• reminder that once this period has elapsed, if the employee has not returned to work or has not provided a legitimate reason, he or she will be presumed to have resigned and the employment contract will be terminated.

We also recommend that the letter of formal notice specify :

• the consequences of resignation on the notice period (see below),
• and that the presumption of resignation deprives you of the right to unemployment benefit.

Step 2: Deadline for employee response and/or return to work

• Minimum delay

The period set by the employer, on expiry of which the employee may be presumed to have resigned, may not be less than 15 days(art. R. 1237-13 C. trav.).

The employer may therefore decide to set a longer deadline (e.g. 20 days).

• Starting point

This period begins to run from the date of presentation of the formal notice(art. R. 1237-13 C. trav.) and not from the date of receipt by the employee(CE 18 décembre 2024 n°473640).

When formal notice is sent by registered letter, it is therefore irrelevant whether the employee refuses to take cognizance of the formal notice: the latter is deemed to have been duly served once it has been presented at the employee's home address, and it is the date of this first presentation that starts the time limit set by the employer.

• Time countdown

The Direction de l'Information Légale et Administrative specifies that this period must be counted in calendar days, i.e. including weekends and public holidays.

In addition, this period is subject to the provisions ofarticle R.1231-1 of the French Labor Code. Thus, if it expires on a Saturday, Sunday or public holiday, it is extended until the next working day.

Step 3: Outcome of the procedure

• Option 1: The employee responds to the formal notice within the allotted time, citing a legitimate reason for abandoning his post. 

In this case, the procedure for presumption of resignation must be interrupted. The employee returns to his post at the end of his absence.

• Option 2: The employee responds to the formal notice indicating that he or she does not wish to return to work, or does not respond to the formal notice and does not return to work.

The employee must then be deemed to have resigned on the day following the expiry of the time limit set for him to return to work, or show a legitimate reason for abandoning his post.

• Option 3: Employee does not respond to formal notice and returns to work

Resumption of workwithin the time limit set by the employer interrupts the presumption of resignation. The employer retains the right to sanction the employee's absence if it has not been duly justified.

Step 4 (if applicable) : Resignation notice

While articles L.1237-1-1 and R.1237-13 of the French Labor Code make no mention of the notice period payable by an employee presumed to have resigned, there is no reason to disregard the rules governing notice periods in the event of a presumption of resignation.

An employee presumed to have resigned and liable to pay notice is therefore required to serve the notice period in accordance with the rules of ordinary law.

• Start of notice period

The starting point for the notice period is the date on which the employee is presumed to have resigned, i.e. the day following the end of the period given to the employee to return to his or her post or to justify abandoning his or her post on legitimate grounds.

• Terms of notice

If the employee is presumed to have resigned, the usual rules governing the period of notice apply:

- In principle, employees are obliged to serve their notice period: if they fail to do so, the employer is not obliged to pay them and may demand compensation corresponding to the sums the employee would have received if he had served his notice period.

Note: In this case, the employee remains on the company's payroll until the end of the notice period.

- The employer may exempt the employee from serving the notice period: in this case, the employer is liable for compensation in lieu of notice corresponding to the wages the employee would have received had he or she served the notice period.

Please note: in this case too, the employee remains on the company's payroll until the end of the notice period.

- The employer and employee may agree not to perform the notice period: in this case, no compensation for notice is due, and the employee leaves the company's workforce early.

Step 5 (if applicable): Follow-up to the alleged resignation 

• Delivery of end-of-contract documents

The employer is required to provide the employee with end-of-contract documents, in the same way as for any other resignation (work certificate, final pay receipt, unemployment insurance certificate).

The employer must mention resignation as the reason for terminating the employment contract.

In principle, these documents are legally binding: the employer is obliged to make them available to the employee, not to send them.

However, the ministerial Q&A recommended that in the event of an employee abandoning his post, the employer should send a duplicate copy of these documents to the employee by post to his last known address. In our opinion, this recommendation remains pertinent.

• Reporting the end of a contract in DSN

The employer must declare "Resignation" as the type of contract termination in the DSN.

Step 6 (if applicable): Consequences for the employee of implementing the presumption of resignation

• Unemployment insurance benefits

If the employee is presumed to have resigned, he or she is not, in principle, entitled to unemployment benefit.

The ministerial Q&A reminded us that there are exceptions to this principle, for resignations considered legitimate, for example in the case of geographical mobility to join a spouse.

• Portability of benefits

As the right to portability is subject to proof of compensation from the unemployment insurance scheme(art. L. 911-8 of the Social Security Code), an employee presumed to have resigned is not, in principle, entitled to it.

• Employee recourse

The presumption of resignation is a simple one. The employee therefore retains the possibility of contesting "the termination of his employment contract on the basis of this presumption".

In this case, the employee may refer the matter to the industrial tribunal (Conseil de prud'hommes). The case is "brought directly before the tribunal, which decides on the nature of the termination and the associated consequences [...] within one month of the date of referral"(art. L.1237-1-1 C. trav.).

- Article L. 1237-1-1 of the French Labour Code

- Article R. 1237-13 of the Labor Code