Job Abandonment in France: Rules and Risks Since the Reform

Job abandonment (abandon de poste) has long been used by employees as a backup solution to quickly leave their company while ensuring they receive unemployment benefits. However, faced with the rise of this practice, the French legislature has radically changed the rules of the game. Since the entry into force of the reform stemming from the "Labour Market" law and its implementing decree, voluntarily and permanently absenting oneself from one's workstation is no longer a shortcut to France Travail (formerly Pôle Emploi, the French unemployment agency), but a major legal and financial trap. Whether you are an employee tempted by this route or an employer faced with an unjustified absence, here is a complete breakdown to understand the new rules.

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1. The Legal Framework: What Has Changed?

Before the reform, an employee's unjustified and prolonged absence was generally classified by the employer as serious misconduct (faute grave), leading to dismissal. This dismissal, although disciplinary, opened the right to return-to-work allowances (ARE - allocation d'aide au retour à l'emploi).

The situation changed with Law No. 2022-1598 of 21 December 2022 on emergency measures relating to the functioning of the labour market, supplemented by Decree No. 2023-275 of 17 April 2023. These texts introduced a new mechanism into the Code du travail (French Labour Code): the presumption of resignation (présomption de démission).

Now, according to *Article L. 1237-1-1 of the Code du travail***, an employee who voluntarily abandons their post and does not return to work after being formally notified to do so is presumed to have resigned.

The Concept of "Voluntary" and Legitimate Grounds

For the presumption of resignation to apply, the job abandonment must be voluntary. Article L. 1237-1-1 lists, in a non-exhaustive manner, the legitimate grounds that block this presumption:

• Health reasons (illness, accident);
• The right to strike (droit de grève);
• The exercise of the right of withdrawal (droit de retrait - if the employee has reasonable grounds to believe that their work situation presents a grave and imminent danger to their life or health);
• Refusal to carry out an instruction contrary to regulations;
• A unilateral modification of an essential element of the employment contract by the employer.

If the employee invokes one of these grounds in their response to the formal notice, the presumption of resignation procedure is halted.

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2. Step-by-Step Procedure for the Employer

For the presumption of resignation to be legally established, the employer must respect extremely strict formal requirements. The slightest procedural misstep can result in the termination being reclassified by a court as a dismissal without real and serious cause (licenciement sans cause réelle et sérieuse) at the employer's fault.

Step 1: Document the Unjustified Absence

The employer must first document that the employee is not at their workstation and has not provided any justification (such as a medical certificate, which must normally be sent within 48 hours). It is advisable to attempt an initial informal contact (phone, email) to ensure it is not a case of force majeure (unforeseeable circumstances).

Step 2: Send the Formal Notice to Return to Work

If the employee remains silent, the employer must send them a formal notice (mise en demeure).

• Form: Registered letter with acknowledgement of receipt (lettre recommandée avec accusé de réception - LRAR) or hand-delivered against a signed receipt.
• Mandatory Content: The letter must expressly request the employee to justify their absence or return to their post. It must clearly state the deadline granted to do so and specify that, failing a return or justification, the employee will be presumed to have resigned upon expiration of this deadline.

Step 3: Respect the Legal Response Period

The decree of 17 April 2023 sets a minimum timeframe. The employee has a period of 15 calendar days (every day of the week counts, including weekends and public holidays) to respond or return to their post. This period begins to run from the date of the first presentation of the registered letter.

Step 4: Record the Termination of the Employment Contract

If, at the expiration of the 15-day period, the employee has not returned to work and has provided no legitimate ground, the presumption of resignation is definitively established. The employer does not need to dismiss the employee. They simply record the end of the employment contract on the date the formal notice period expired and hand over their end-of-contract documents (receipt for final settlement (reçu pour solde de tout compte), work certificate (certificat de travail), and the France Travail certificate mentioning "Resignation").

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3. Financial Consequences for the Employee

The major consequence of this reform lies in the loss of financial rights. Unlike a dismissal for serious misconduct, resignation does not open the right to unemployment benefits.

Deprivation of Unemployment Benefits (ARE)

The France Travail certificate will bear the mention "Resignation" (Démission). Consequently, the employee will be denied the payment of the return-to-work allowance. They will have to wait for a period of 121 days (i.e., 4 months) of inactivity to request a review of their situation by the regional joint body (instance paritaire régionale) of France Travail, with no guarantee of obtaining compensation.

Absence of Severance Pay

The employee presumed to have resigned receives:

• No severance pay (indemnité de licenciement);
• No compensation in lieu of notice (indemnité compensatrice de préavis - since they are not performing their resignation notice period).

The employee will only be entitled to their compensation in lieu of paid leave (indemnité compensatrice de congés payés) for days acquired but not taken, as well as any salary elements due for the period worked prior to their absence.

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4. Concrete and Numerical Examples

To fully measure the financial impact of this reform, let us analyze two concrete situations.

Example 1: The Case of Thomas, IT Technician

Thomas, an employee on a permanent contract (CDI) for 5 years, receives a gross monthly salary of €2,500. Tired of his job, he decides to abandon his post on 1 October to force his employer to dismiss him, hoping to collect unemployment benefits to launch a personal project.

• Procedure: His employer sends him a formal notice received on 5 October. With no response from Thomas, the resignation is recorded on 20 October.
• Immediate Loss of Severance Pay: If he had been dismissed for economic reasons or for a real and serious cause, Thomas could have claimed a legal severance pay of approximately €3,125 (1/4 of a month's salary per year of seniority). Due to the presumption of resignation, this indemnity is equal to €0.
• Loss of Unemployment Benefits: Thomas expected to receive about €1,400 net per month in ARE. Due to the presumption of resignation, his rights are blocked. If he remains unemployed for the following 4 months, the direct financial loss amounts to €5,600 (4 x €1,400).

Example 2: The Case of Sarah, Sales Assistant

Sarah has been on a CDI for 1 year with a gross salary of €1,800. She stops showing up at her post because she believes she is experiencing moral harassment from her manager, but she has never written to her management about this.

• Procedure: The employer sends the formal notice. Sarah, panicking, does not respond within the 15-day deadline.
• Result: She is declared to have resigned and is deprived of unemployment benefits.
• Recourse: To assert her rights, Sarah must urgently refer the matter to the Conseil de prud'hommes (French labour tribunal) to challenge the presumption of resignation (invoking harassment as a legitimate ground). If the tribunal rules in her favour, the resignation will be reclassified as a null and void dismissal or a dismissal without real and serious cause. She will then be able to collect her allowances retroactively and obtain compensation (a minimum of 1 month of gross salary according to the Macron scale for one year of seniority, i.e., €1,800, plus damages for harassment). However, the procedure can last several months during which she will have no income.

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5. Mistakes to Avoid

For both employees and employers, this procedure is a major source of litigation. Here are the pitfalls to avoid at all costs:

• For the employee: Using job abandonment as a quick way to leave. This is now the worst financial calculation. If you want to leave, opt instead for a mutually agreed termination (rupture conventionnelle), a classic resignation (while actively looking for a new job), or a constructive dismissal claim (prise d'acte de rupture) in the event of serious breaches by the employer.
• For the employee: Ignoring the employer's formal notice. Even if you are sick or suffering at work, you must imperatively respond in writing (by LRAR) within 15 days, providing your justification (medical certificate, proof of referral to the occupational physician (médecine du travail), etc.).
• For the employer: Recording the resignation without a prior formal notice. The presumption of resignation is never automatic. Without sending a formal notice in due form and respecting the 15-day deadline, the termination will systematically be reclassified as an unfair dismissal by the judges.
• For the employer: Exempting the employee from the notice period without their agreement. The employee presumed to have resigned is theoretically required to perform their resignation notice period. If they do not, the employer can claim compensation in lieu of notice before the prud'hommes, but the employer must not unilaterally decide not to pay it if they require the employee to perform it.

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6. Frequently Asked Questions (FAQ)

Can the employee challenge the presumption of resignation?

Yes. The employee can refer the matter to the Conseil de prud'hommes (CPH) to overturn this presumption. The law has provided for an accelerated procedure: the case is brought directly before the judgment court (bureau de jugement), bypassing the conciliation phase, and the tribunal must rule on the merits within a maximum of 1 month.

What happens if the employee returns to their post on the 14th day?

If the employee returns to work before the expiration of the 15-day period, the presumption of resignation can no longer apply. However, their past unjustified absence remains a disciplinary offense. The employer retains the right to issue a classic disciplinary sanction (warning, reprimand, or even dismissal for misconduct).

Is the employer obliged to use the presumption of resignation procedure?

No. The Cour de cassation (French Supreme Court) has clarified that this procedure is an option for the employer and not an obligation. The employer can still choose to dismiss the employee for serious misconduct due to their unjustified absence, even if this choice is now less attractive to the employer since it would allow the employee to claim unemployment benefits.

Does a medical certificate sent late block the resignation?

If the employee sends a medical certificate after the expiration of the 15-day period but before the employer has formally recorded the termination, the situation becomes complex. Judges assess this on a case-by-case basis, but sending a serious medical justification, even late, greatly weakens the "voluntary" nature of the job abandonment required for resignation.

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Summary

• The Presumption of Resignation: Since the 2023 reform, unjustified job abandonment legally equates to a resignation after a formal notice has been issued.
• Loss of Unemployment Benefits: An employee who abandons their post loses immediate access to France Travail allowances (ARE).
• 15-Day Deadline: The employer must formally notify the employee by LRAR, and the latter has 15 calendar days to return to their post or justify their absence.
• Legitimate Grounds: Illness, the right to strike, or the right of withdrawal block the presumption if they are reported in time.
• Accelerated Recourse: In the event of a dispute, the employee can refer the matter to the prud'hommes, which must theoretically rule within 1 month.

Legal information for guidance only, not personalised legal advice. For your specific situation, ask your question free of charge on AvocatAI — answers based on French law, in your language.