Abandonment of Position: A Resignation ?

Abandonment of position – a resignation or ground for dismissal ?

Resignation, mutual termination agreement, or employer initiated termination: the nature of a contract termination has several impacts, most importantly on the potential allowances by the unemployment insurance.
In principle, in France, an employee resigning will not have any rights to payments from the unemployment insurance. There are only few exceptions to this rule.
For this reason many employees wishing to leave a company will request a mutual termination agreement in order to maintain their rights. However, this is subject to the acceptance by the employer and the payment of a termination indemnity.

Abandonment of position – ground for dismissal

In the event that the employer does not accept the employee’s request, certain employees simply abandon their position. As of now, this cannot be considered a resignation as it is not a clear and unequivocal manifestation of the employee’s desire to terminate the employment contract.
However, the abandonment of position will eventually, after respect of a procedure, allow for a dismissal by the employer. If further conditions are met, the employee will then receive payments from the unemployment insurance.

Bill ‘Marché du travail’: presumption of resignation

The government aims to close this loophole with a presumption of resignation.
The bill ‘Marché du travail’ creates a simple presumption of resignation when an employee voluntarily abandons his position. After having been given formal notice by his employer and after the expiration of a deadline to return to work, the employee is presumed to have resigned.

The employee can then contest the termination of his employment contract on the basis of this presumption. This presumption does not apply to employees who do not report to work for legitimate reasons.

The bill, if voted favorable by the Assembly and then the Senate, must still pass the possible stage of the Constitutional Council before being published in the Official Journal.