Actance Tribune
What's NEW under French Employment Law?
N° 10 – November 7, 2022
Resignation soon presumed in case of abandonment of post?
A bill, currently under discussion in Parliament, aims to create in French law a presumed resignation in the case of job abandonment (unauthorised absence of the employee from their work position).
For the bill´s rapporteurs, the proposed measure aims “to limit the disruption caused by job abandonment in companies and so that the unemployment compensation rules provided for in cases of resignation can be applied to these employees. It is not desirable that an employee made redundant following abandonment of post has a more favourable situation in terms of unemployment insurance than an employee who resigns and who receives no compensation”.
Currently, the employer cannot consider that the employee has resigned from their employment contract. Should the employee fail to terminate the employment contract on their own initiative, the employer must then dismiss them, if necessary for serious misconduct. In practice, and depending on the circumstances, the fault or misconduct is more or less serious, particularly regarding the employee seniority, the position they hold; whether the fault is repeated or not and especially with regards to the real consequences for the company or the department in which the employee works.
This situation encourages an employee to abandon their post since this gives them, on the one hand, unlike resignation, unemployment insurance benefits except in specific cases and, on the other hand, in the event of dismissal for serious misconduct, avoids them having to give notice given that an employee who resigns and who does not fulfil the notice conditions, could actually be ordered to pay compensation to the company.
Should the bill be adopted, article L.1237-1-1 of the French Labour Code will state that “an employee who has voluntarily abandoned his position and does not return to work after having been given formal notice to justify his absence and to resume his work, by registered letter or by letter delivered by hand against receipt, within the time limit set by the employer, is presumed to have resigned at the end of this time limit”.
Before the employee can be considered as having resigned, the employer must have given formal notice to the employee to justify himself (should the text provide that formal notice could be carried out by hand delivery against receipt, this is inconsistent with the abandonment and only the registered letter shall apply) and he may set the deadline after which, if there is no response, the latter will be presumed to have resigned. This last provision thus makes allows to specify the date on which the resignation may be considered effective, thus resulting in the termination of the employment contract.
It is specified that the measure shall not apply to employees who leave their position for health or safety reasons.
Finally, it’s also provided that the employee may challenge the termination of his employment contract on the basis of this presumption by initiating a lawsuit before the Labour Court (Conseil de prud’hommes) . The case should be brought directly before the judgment office (without going through the conciliation office) who shall then decide on the type of termination and its consequences then will rule on the merits within one month.
Should the legislator provide that the practical arrangements of this system will have to be specified by decree, the introduction into the French Labour Code of such a presumption of resignation would constitute a veritable paradigm shift from the previous rules according to which a resignation must be clear and unequivocal.
Above all, this act raises a number of questions and it is not yet clear if this procedure will be more reassuring for employers in the future.
First of all, we must consider whether, with the presumption of resignation for abandonment of post, the employer can systematically dismiss the employee, or whether the presumption of resignation will be the common and exclusive right of breach of contract due to abandonment of position.
Then, the question will arise concerning any justifications that may be provided by the employee and specifically what should be understood by a resignation justified by health or safety reasons. Should this condition be assessed as regards the employee only? In relation to the other employees? What will be the means of checking used by the Labour Court concerning safety issues?
Likewise, the text stipulates that the employee may directly report to the judgment office of the French Labour Court who then must decide on the type of termination within one month. However, this accelerated procedure, which refers to the procedure already applicable in matters of formal notice or judicial termination, is practically untenable given the backlog of the Labour Courts and employees would have little chance of a judgment in any timeframe of less than several months.
Therefore, should the presumption of resignation be overturned by the Labour Court, an employer could then be ordered to pay damages due to the deprivation of the back-to-work allowance, from the date of the presumed and disputed resignation while awaiting a decision.
Finally, what will be the judges’ position on the execution of the notice period and due compensation? Or even on the application of the contractual provisions which sometimes provide that a resignation must be in writing?
These are all questions which require clarification by the legislator and could in fact pose a greater risk to the employer than maintaining the current rules.
Publication of a Q&A regarding the option for employees to monetize all or part of their full or half days of rest acquired
Article 5 of Law n°2022-1157 of August 16, 2022 on amending finances for 2022 provides the option for employees to monetise all or part of their full or half days of rest acquired for periods after January 1, 2022 and until December 31, 2025 according to an agreement or collective bargaining agreement establishing a system for reducing working hours maintained in force pursuant to law no. 2008-789 of August 20, 2008, or pursuant to a system of conventional rest days established according to Articles L. 3121-41 to L. 3121-47 of the French Labour Code.
On October 27, 2022, the Labour Ministry published a Q&A on this act, specifying that the rest days allocated to a time-saving account cannot be monetised under this law since these days can already be monetised under the conditions set out in the establishing collective bargaining agreement, if applicable.
However, this Q&A document does not indicate, contrary to what certain legal journals asserted when the system came into force, that employees of companies that have set up a time savings account be excluded from the benefit of the system for the monetisation of days of reduced working hours (JRTTs).
This was also not provided for by article 5 of the aforementioned law.
Can we oblige employees, following the COVID-19 pandemic with the increased use of teleworking, who have chosen their domicile quite a distance from the company, to return to work on site?
With the end of the pandemic due to COVID 19, many companies intend to require employees to return to work on-site full time within the company, or at the very least in strict compliance with the telework agreements that may be in force.
However, some employees have taken advantage of the health crisis and the increased use of teleworking to move their domicile far from the company and now refuse to return to work on-site at the company, which raises the question of possible sanctions that may be established against these employees.
Great care is required in this regard.
Indeed, the Court of Cassation has guaranteed employee’s freedom of choice of domicile (Court of Cassation – social division, January 12, 1999, Number 96-40.755) and, pursuant to Article L.1132-1 of the French Labour Code, specifically no employee may be sanctioned, dismissed or be the subject of a direct or indirect discriminatory measure because of their place of domicile.
However, in a judgment of March 10, 2022, the Versailles Court of Appeal nevertheless decided to restrict the possibility for an employee to choose his domicile at a great distance from the company, judging that the “excessive distance” between the employee’s home and the company “could not be accepted by the employer given their safety obligation resulting from article L 4121-1 of the French Labour Code, as well as that employee obligations under article L. 4122-1 of the same code”.
In the opinion of the Judges, “no disproportionate interference with the free choice of personal and family domicile concerning the right to respect the choice of domicile, as protected by Article 8 of the European Convention for the Protection of Human Rights, appears to be stated given the essential obligation to protect the health and safety of the employee » (CA Versailles, March 10, 2022 no. 20/02208).
However, it has already been ruled that by recalling an employee to work on-site, partially or totally, constitutes a modification of the employment contract and more than a simple change in the working conditions, as existing and accepted for several years (Court of Cassation – social division, February 13, 2013, number 11-22.360 considering tolerance had lasted for 12 years and the Orleans CA, Social affairs, December 7, 2021, number 19/01258 for which tolerance lasted 8 years).
Pending new decisions on the matter, the return of employees whose telework has not been guaranteed contractually should be accompanied by sufficient information, explanations and notice.