The presumption of resignation of an absent employee, or how to make the employers bear a responsibility that should not be theirs.  

Depending on the employer's assessment of the justification of the absence, an employee may be deprived of unemployment benefits. Is this really an employer's responsibility? Our first thoughts on this new procedure 

Article L. 1237-1-1 of the French Labor Code has established a new principle: an employee who abandons their position and does not come back or does not justify their absence despite a formal notice from their employer is presumed to have resigned and will therefore be deprived of unemployment benefits.

The terms of implementation of this presumption were specified in a decree dated April 17, 2023:

•   The employer must give notice to the employee to return to their position or to justify their absence, by registered letter with acknowledgement of receipt or by letter delivered by hand ; 

•  At the end of a minimum period of 15 days from the notification of the formal notice, if the employee has not justified their absence, they will be presumed to have resigned.

From a purely practical point of view, one may wonder how an employer would be able to hand-deliver to an absent employee a letter of formal notice to return to work.

On substance, most employees will refuse the principle of a resignation, which would cause them to lose the right to unemployment compensation, and will justify their absence in one way or another.

It will then be up to the employer to decide whether or not it is a resignation, a decision that will have serious consequences for the employees.

Let's admit that it was more reassuring for the employer to proceed with a dismissal for serious misconduct or for simple misconduct and, in the latter case, not to pay the employee during his notice period, on the grounds that they were unjustifiably absent.

In this case, the employer was not responsible for seeing the employee deprived of unemployment compensation. 

The question arises as to which compensation the employer will be liable for if they presume an unjustified or even abusive resignation. What will the employee be entitled to, a backpayment of unemployment compensation, damages for dismissal without real and serious cause, or separate damages ? 

Is the administration not insidiously transferring its responsibility to identify employees who try to circumvent the conditions of unemployment compensation ?

This reform places the responsibility on employers - or any human resources team - to decide that an employee will be deprived of unemployment benefits and therefore potentially of any resources, because of an absence. Is this really its role ?

On the other hand, is it wise to give employers the prerogative of being able to deprive an employee of all unemployment benefits on the grounds that they consider the employee's absence to be a resignation ?

The employee would then be obliged to urgently refer the matter to the Employment tribunal in a context where they will be without resources, with the fear that in case of recognition of a resignation, he may be liable to the employer for their notice period. 

The administration should have, at the very least, set a limit to the possible justifications of the absence of the employee, in order to protect both employers and employees.

In any event, these questions lead us to express the strongest reservations about the merits of this reform.