Treating termination as a voluntary resignation

At a glance

• Decree 2023-275 of 17 April 2023 finalises the procedure implementing the new presumption of resignation.

The "labour market" law of 21 December 2022 created Article L. 1237-1-1 of the Labour Code, which provides that an employee who voluntarily leaves their post and does not return to work after being given notice to justify their absence within a time limit set by the employer is presumed to have resigned (and will not be eligible for unemployment payments).

Decree 2023-275 of 17 April 2023 finalises the procedure implementing this presumption and brings the new system into force.

The Ministry of Labour has provided numerous clarifications in its Q&A including the following:

• The minimum period allowed for the employee to return to their post is 15 calendar days from delivery of a registered letter or of a hand delivered letter with a receipt.  
• As with a summons to an interview prior to dismissal, sending the formal notice by registered letter prevents any dispute over the date of delivery of the formal notice. Also, if the employee refuses to acknowledge the formal notice, the latter is still properly notified provided it was delivered to the employee's home.
• The employee's resignation should be recorded as taking effect on the final date for resumption of work set by the employer.
• The common law rules on notice periods for resignation apply. It is highly likely that the resigning employee will not provide the required notice. An employer who uses the presumption of resignation will have no interest in excusing the employee from giving notice and should avoid mentioning this. The Ministry confirms that when notice is not given by the employee's, the employer does not have to pay compensation.
• The employer must mention "resignation" as the type of contract termination on the Pôle Emploi certificate, just like in the DSN.
• In the event of a dispute over the termination; the matter will be dealt with by the judgement office of the Conseil de prud'hommes, which gives a ruling within one month.