In an action brought by trade unions, the Conseil d’État today rejected the application to annul the decree of 17 April 2023, implementing the presumption of resignation in the event of job abandonment, as established by law in the private sector. However, the Conseil d'État specified that, for an employee's resignation to be presumed effective, they must be informed of the consequences of not returning to work without a legitimate reason.
The law of 21 December 2022 established the presumption of resignation for employees who voluntarily abandon their jobs and fail to return to work after being given formal notice to justify their absence and return to their jobs within a period set by the employer. The implementation details of this new procedure were set out in the decree of 17 April 2023, which was also accompanied by an FAQ entitled "Questions and answers - Presumption of resignation in the event of voluntary job abandonment by an employee”, published on 18 April 2023, on the website of the Ministry of Labour, Full Employment and Integration. Unions took the matter to the Conseil d’État, calling for the decree and the FAQ to be annulled and replaced on the Ministry's website.
The Conseil d'État first observed that the contested decree merely sets out the procedures for implementing the law and, as such, cannot be considered a "reform project" requiring prior consultation under the provisions of the Preamble to the 1946 Constitution and the French Labour Code.
The applicants then criticised the law and decree for failing to provide the employee with the guarantees set out in International Labour Law Convention No. 158 on dismissal from employment. However, this convention only deals with the termination of the employment relationship at the employer's initiative, not voluntary resignation. It is, therefore, inapplicable, as the procedure, although initiated by the employer through formal notice, is effectively triggered by the employee’s ongoing unjustified absence, which ultimately leads to the termination of the employment relationship.
The Conseil d'État also highlighted that, as indicated by the decree, job abandonment cannot be considered voluntary when justified by legitimate reasons, such as medical issues, exercising the right of withdrawal or the right to strike, refusing to follow an instruction that infringes regulations, or changes made to the employment contract at the employer’s initiative. Presumption of resignation cannot, therefore, apply in such situations.
Furthermore, the law requires the employer to issue formal notice to an employee who has abandoned their job. The purpose of the formal notice is to determine whether the employee has voluntarily abandoned their post by providing them with an opportunity to either justify their absence or return to work within a specified timeframe. Regarding job abandonment in the civil service, the Conseil d'État had previously held that an employee's resignation could only be presumed if they were informed of the consequences of failing to return to work without a legitimate reason. In today's ruling, the Conseil d'État adopted the same position regarding private sector employees, even though the decree did not explicitly state this.
Lastly, the law stipulates that the employer must send formal notice by registered letter or by letter delivered against a receipt. The contested decree stipulates that the employer must grant the employee a minimum of 15 days from the date on which formal notice is delivered to justify their absence or return to work. The Conseil d'État considers that the decree determines a clear timeframe and starting point for this minimum period, which are neither contrary to the law nor obviously erroneous.
Several applicants also sought the annulment of the FAQ posted on the Ministry's website on 18 April 2023, which addressed the employer's option to choose between the job abandonment procedure and dismissal for misconduct. Neither the law nor the decree provide any provisions on this point. However, the Conseil d'État did not address this issue, noting that the disputed section of the FAQ was removed from the website in June 2023, and that the updated version no longer contained the contested information.
On these grounds, the Conseil d'État rejected the applications for the annulment of the decree dated April 17, 2023, and declared that there was no need to rule on the requests concerning the FAQ entitled, "Questions and Answers - Presumption of Resignation in Cases of Voluntary Abandonment of Post by the Employee."
Read the decision (in French)