France: “No Show, No Call” absenteeism can be presumed to amount to a resignation.
Prior to the December 21, 2022 law, in case of a “No Show, No Call” situation, employers could only terminate employees’ contracts by following the dismissal procedure on disciplinary grounds set out by French law.
Pursuant to Article L. 1237-1-1 of the French Labor Code, as amended by the law of December 21, 2022, employees who voluntarily abandons their position and do not return to work within the time limit set by their employer may now be presumed to have resigned. The decree adopted on April 17, 2023, sets out the procedural steps which must be followed:
- the employer must send employees a formal letter by registered post with acknowledgement of receipt. In this letter, the employer must ask employees to justify their absence and, in the absence of a valid reason, require them to return to work by a certain date. Such date cannot be less than 15 calendar days from the date on which the registered letter will first be delivered to employees. According to guidance provided by the Ministry of Labor, the employer must also explicitly state that should employees not return to work before such date, they will be presumed to have resigned. The employer should also remind employees of the duration of their mandatory notice period.
- Within said time period, employees must provide a legitimate reason to justify their absence. The decree provides a non-exhaustive list of legitimate reasons that employees may put forward to avoid being presumed to have resigned e.g. medical reasons, the right to withdraw from a dangerous situation in the workplace, the right to strike, modifications of their employment terms, etc…
- If employees do not respond within the set time period or do not provide a legitimate reason, employees will be presumed to have resigned at the end of the said time limit.
Key Action Points for Human Resources and In-house Counsel
- In case of a “No Show, No Call” situation, ensure that that the procedural steps are respected.