Abandoning the job is resigning Part 2 : the presumption of resignation is effective from April 19th


[Credit mage Mohamed Hassan from Pixabay]

In our previous newsletter we had informed you that the new “Labour Market” law published on December 22nd, 2022, created a new article L. 1237-1-1 in the French Labour Code.

This new article provides that an employee who voluntarily abandons his/her job and does not return to work once having been given formal notice by the employer to justify his/her absence and to return to work, within a specified timeline, is presumed to have resigned at the end of this timeline.

The decree of application indicating the duration of this specific timeline has now been published. This decree perfects the procedure for implementing this presumption and thus allows this new system to come into force. It was immediately supplemented by Questions and Answers from the Ministry of Labor.

  • A minimum delay of 15 days following reception or the formal notice

The employer must indicate in the formal notice the time limit within which the employee must return to work. The employer must also ask for the reason for the employee’s absence, justifying the absence.

The employer cannot set a deadline of less than 15 days to allow the employee to justify his/her absence. To prevent any dispute as to the date of delivery of the formal notice, it is strongly advised to send it by registered letter.

The employer must also point out that after this period, if the employee fails to return to his/her job, he/she will be presumed to have resigned.

  • The employee who has a legitimate reason must respond to the formal notice

The presumption of resignation assumes that the employee’s abandonment of his/her position is voluntary, and not based on a legitimate reason for the absence.

The decree considers the following as legitimate reasons for the employee’s absence:

  • Medical reasons,
  • The exercise of the right of withdrawal or the right to strike,
  • The refusal of the employee to carry out an instruction contrary to a regulation,
  • The modification of the employment contract at the initiative of the employer.

The Ministry of Labor in its Questions and Answers seems to require the employee to also provide justifications, either by means of a document attached to his/her reply, or by means of detailed factual elements which he/she must mention in his/her letter.

The question of the employer’s assessment of the legitimate reason for the presumption of resignation raises many questions that the judges will have to answer through Case Law.

  • Consequences of the presumption of resignation

A notice period of resignation is due if legal or contractual provisions so provide. The notice period then begins to run from the last day of the period given to the employee to justify his/her absence or to return to his/her job.

If the employer wishes to exempt his/her employee from performing work during the notice period, a compensatory allowance should be paid to the employee corresponding to the salaries the employee would have earned if he/she had worked during the notice period.


Should you have any questions, or should you need assistance in this matter, please do not hesitate to contact us.

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