Dismissal for abandonment of position: rights, rules and procedures

Job abandonment is the situation in which the employee ceases to perform his duties or does not resume them without authorization from his employer, in a definitive manner and detrimental to the company.

It is distinguished from the legitimate legal absence of the employee for health reasons, the death of a loved one or the exercise of the right of withdrawal or the right to strike, and which does not require authorization from the employer.

The reasonable period of absence to characterize abandonment of position is 48 hours and corresponds to the time left to the employee to notify their employer in the event of sick leave or justification for absence due to force majeure.

Until the Labor Market Law of December 21, 2022 and its implementing decree of April 17, 2023, in the event of abandonment of a position disrupting the company, the employer initiated disciplinary proceedings and pronounced dismissal for serious misconduct.

Since this law, a new mechanism for terminating the employment contract has been introduced as an employer’s response to job abandonment: the presumption of resignation.

But then, what about dismissal for abandonment of position? Is it still possible?

The presumption of resignation

Introduction of the presumption of resignation

Before the entry into force, on April 19, 2023, of the labor market law, the case law of the Court of Cassation consistently considered that “resignation is not presumed ».

It required the employee to have a clear, serious and unequivocal desire to terminate their employment contract. An abandonment of position, even prolonged, could therefore never be automatically reclassified as resignation by the employer.

Following the 2023 reform, the legislator reversed this principle. From now on, article L. 1237-1-1 of the Labor Code provides that an employee who voluntarily abandons his position and does not return to work, after having been notified to do so, is presumed to have resigned.

The presumption of resignation is a method of termination exclusively reserved for contracts of indefinite duration.

It is not absolute, the employee can contest it before the industrial tribunal.

Furthermore, the employer is strictly prohibited from implementing the presumption of resignation in the following cases:

• Absences for medical reasons and state of health;

No matter how long it takes for the employee absent due to illness or work accident to send in his work stoppage, the employer cannot invoke resignation.

• Exercise of the right to strike;

The right to strike being a constitutional right, the absence of a striking employee can never be qualified as abandonment of post, nor as resignation.

• Exercise of the right of withdrawal;

The absence of an employee who leaves his position because he believes he is in serious and imminent danger for his life or health is legitimate and the presumption of resignation cannot apply.

• Refusal of a substantial modification of the employment contract;

An employee who refuses a modification of an essential element of the employment contract imposed by the employer and who is absent from his position to express this refusal cannot be considered as having resigned. However, he can be dismissed for economic reasons or for personal reasons.

The legal procedure of the presumption of resignation

For the presumption of resignation to apply, the employer must follow strict formalities, otherwise the termination will be reclassified as unjustified dismissal. It must, in particular, respect two conditions:

Put the employee on notice

After establishing the unjustified absence, the employer must put the employee on notice to justify his absence and to return to his position, by registered letter with acknowledgment of receipt or by hand-delivered letter against discharge.

The formal notice must specify the period within which the employee must return, a period of at least 15 calendar days which runs from the date of first presentation of the letter of formal notice. It must also specify the consequences if the employee refuses to return to his position before the deadline expires.

The employee’s refusal to accept the registered letter has no impact on the starting point of the deadline.

Respect the deadline set in the formal notice

If the employee does not return to his job at the end of the period set by the employer in his formal notice, the two conditions are met and the employee is deemed to have resigned.

From there, three hypotheses can be presented:

• Either the employee returns to his position within the allotted time: the procedure is then interrupted and the employer can no longer assume resignation. However, the employer may choose to initiate disciplinary proceedings up to and including dismissal.

• Either the employee justifies his absence without returning to his position: the presumption of resignation is no longer possible. If the employee can rely on a legitimate reason (health reason, exercise of the right of withdrawal, the right to strike, refusal to carry out an instruction contrary to the regulations), the procedure stops there. If the employer considers the reason given by the employee to be unfounded, he may implement the disciplinary procedure, but will not be able to consider the employee as having resigned.

• Either the deadline expires without a response or return from the employee: the employee is considered to have resigned. As with any resignation, the employee must complete a notice period which begins to run from the last day set by the employer for the resumption of the employee’s position. At the end of the notice period, his contract is terminated and he will not receive unemployment benefits. The employer also has the possibility of exempting the employee from carrying out his notice and immediately terminating the employment contract. He will then have to pay compensation for notice, the amount of which corresponds to the wages he should have received if he had given notice. In the absence of notice, the contract is then terminated immediately after the deadline set by the employer.

If the employee and the employer decide by mutual agreement not to provide notice, the employer, in this case, is not required to pay compensation in compensation for notice.

The employer must inform the employee that the end of contract documents are made available to him.

The employee who contests his presumption of resignation may refer the matter to the industrial tribunal. The judge has one month to rule.

À notesÂ: During all this time the employee is absent, he or she is not paid.

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Is dismissal for abandonment of position still possible?

As we have just seen, the employer is no longer obliged to initiate a dismissal procedure for misconduct when the employee meets the conditions for abandonment of position, he can simply wait for the expiration of the period so that the employee is presumed to have resigned.

However, the presumption of resignation did not remove dismissal for abandonment of position. Â

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On the one hand, although the presumption of resignation is a method of termination exclusively reserved for contracts of indefinite duration, the employer can choose to dismiss the employee for abandonment of position within a period of 2 months.

On the other hand, there are certain contracts for which the presumption of resignation mechanism does not apply.

Cases where dismissal for abandonment of position remains possible

Salary post abandonment at CDI

Faced with the abandonment of the employee’s position on a permanent contract, the employer can choose not to presume him to have resigned, and to implement a disciplinary procedure which could go as far as dismissal for serious misconduct.

But the employer must be able to prove that the circumstances of the job abandonment are not attributable to him and that this abandonment has harmful consequences for his company.

Indeed, following his dismissal, the employee could contact the Industrial Tribunal and invoke, for example, his abandonment of position as a response to a failure by the company (non-payment of hours, harassment, etc.) which could result in the dismissal for serious misconduct being reclassified as dismissal without real and serious cause, or even as void dismissal.

In such a case, the employer should pay notice pay, legal or conventional dismissal compensation and damages for unfair dismissal.

Abandonment of the employee’s position on a fixed-term or temporary contract

The presumption of resignation mechanism does not apply to employees on fixed-term contracts and the rules concerning the abandonment of a position by employees on fixed-term contracts have not changed.

When a fixed-term or temporary employee abandons his or her job, the employer can proceed with an early termination of the fixed-term contract for serious misconduct, characterized by prolonged and unjustified absence, which involves initiating a classic disciplinary procedure leading to a termination for misconduct.

In this case, the employee, if he meets the payment conditions, can benefit from unemployment benefits.

L’abandon de poste du salarié protégé

The use of the presumption of resignation towards a protected employee seems risky.

Indeed, for illustration, the Court of Appeal ruled in a judgment of March 6, 2025, No. 24/02319 on the conciliation between the resignation regime and the guarantees attached to the status of protected employee.

In this case, on the basis of legal provisions, an employer considered a protected employee to have resigned, after having given him formal notice to justify his absence or to return to his post.

The Court of Appeal, after emphasizing that “the labor code does not provide for any specific provision for requesting authorization for termination due to presumed resignation“, considered that the termination of the employment contract was tainted with irregularity, in that it had been carried out without prior authorization from the labor inspectorate, in violation of the protective regime applicable to employees vested with a mandate representative.

She adds that “if it is accepted that the protective status does not apply when the employee decides to unilaterally terminate his employment contract, which is explained by the fact that the termination results from the sole will of the employee and does not involve the employer, on the other hand, the legal presumption of resignation which involves the employer in the termination of the employment contract, does not exempt the latter from requesting the labor inspection ”.

For a protected employee abandoning their position, it therefore seems more prudent, given the major risk of nullification of the termination incurred in the event of implementation of the presumption of resignation mechanism, to initiate a traditional disciplinary dismissal procedure, with prior authorization from the Labor Inspector.

The dismissal procedure for abandonment of position

The dismissal procedure for abandonment of position includes 3 big stages that the employer must respect:

Carry out the steps prior to dismissal in order to prove abandonment of position

Before giving formal notice to the employee, the employer must ensure that this is indeed an abandonment of position. To do this, he can contact the employee by any means (email, telephone) or inquire with his colleagues.

The employee has a period of 2 days to come forward and justify his absence. If there is no news at the end of this period, the employer has the right to initiate the procedure for dismissing the employee.

To be able to trigger the dismissal procedure for serious misconduct in the event of job abandonment, the employer must justify:

• Failure to return to work by the employee despite formal notice and the interview prior to dismissal;
• Failure to justify absences;
• Compliance with the 2-month period available to the employer to initiate the dismissal procedure;
• Proof of disorganization of the company and the damage caused by the employee;
• Inform the employee to justify their absence and to return to their position by sending a registered letter with acknowledgment of receipt within 5 days following the unjustified absence. The letter of formal notice must detail the reasons why the employee’s absence is causing harm to the company and leading to disruption of activities.

In the absence of a response or in the event of an unsatisfactory response from the employee, the employer may initiate the dismissal procedure for serious misconduct. The employee’s refusal to sign or collect the registered letter does not impact the dismissal procedure, the employer can continue the procedure.

Summon the employee to an interview prior to dismissal, then send them the dismissal letter

The procedure for dismissal for abandonment of position corresponds to that for dismissal for personal reasons, the employer must first invite the employee to an interview prior to dismissal by registered letter with acknowledgment of receipt which must state the possibility for the employee to be assisted during the interview.

A period of 5 working days must separate the receipt of the invitation by the employee and the prior interview. During the interview, the employer explains the reasons why the employee is summoned and the employee can justify his behavior.

At the end of this interview, the employer may decide to withdraw or continue the dismissal procedure. In this case, the employer has a maximum period of one month to notify the employee of the dismissal.

The dismissal letter must be sent by registered letter with acknowledgment of receipt at least 2 days after the preliminary interview.

The employee’s absence from the interview prior to dismissal has no impact on the continuation of the procedure. The dismissal letter specifies the employee’s absence from the preliminary interview.

A dismissal for abandonment of post, generally pronounced for serious misconduct, leads to several consequences:

On the other hand, the employee retains his rights to paid leave compensation, and éventuellement à sa rémunération variable et à des primes au prorata.

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