When an employee abandons their position without legitimate reason, the employer is faced with a complex legal situation.
The law of 21 December 2022, supplemented by the decree of 17 April 2023, establishes a presumption of resignation in certain cases of abandonment of position, subject to compliance with a strict procedure.
What is presumption of resignation?
Article L.1237-1-1 of the Labour Code stipulates that presumption of resignation may be invoked if three cumulative conditions are met:
- Voluntary abandonment of the position without legitimate reason.
- Sending a formal notice to the employee, asking them to justify their absence and return to work.
- Failure to return to work within the period specified in the formal notice.
The formal notice is an essential step, which must be drafted with care and contain certain mandatory information:
- A minimum period of 15 days for the employee to justify their absence or return to work (from the date of delivery of the letter).
- A clear statement specifying that if no response is received or the employee does not return to work, the procedure for presumption of resignation will be initiated.
- An indication that the employment contract will be terminated at the end of the specified period.
Risks associated with a non-compliant formal notice
A poorly drafted formal notice or one that does not comply with legal requirements can have serious consequences for the employer. Common mistakes include:
- Setting an insufficient deadline, for example 48 hours, instead of the legal deadline of 15 days.
- Failure to explicitly mention the consequences of not returning to work, which weakens the validity of the procedure.
Using ambiguous wording that suggests a desire for a contractual termination, which may contradict the notion of voluntary resignation and open the way to a dispute before an employment tribunal.
These shortcomings may expose the company to the risk of the termination being reclassified as dismissal without real and serious cause before the industrial tribunal, with significant financial and legal consequences.
How can you make the procedure secure?
Abandonment of a position and presumed resignation are just two examples of the many delicate situations that can arise in employment law. To limit the risks and secure your approach, it is essential to seek the assistance of experienced professionals.
Our firm offers personalised support in drafting formal notices and applying legal procedures, while ensuring compliance with the requirements of the Labour Code. We also advise you on all issues related to employer-employee relations.
Book a free 20-minute consultation with lawyer Yuliana Colorado
