OD FLASH | Presumption of resignation of a protected employee: the authorization from the labor inspectorate is required

CA Paris, March 6, 2025, no. 24/02319

The procedure of “presumed resignation” instituted by law no. 2022-1598 of December 21, 2022, enables a resignation to be deduced from an unjustified job abandonment, despite formal notice from the employer (C. trav., art. L. 1237-1-1).

This procedure must be handled with caution, as there are many areas of uncertainty. In a decision handed down on March 6, 2025, the Paris Court of Appeal confirms the need for vigilance when resorting to the “presumed resignation”.

In this case, the protected employee of a company (as he was an employee advisor) was summoned to an interview prior to a possible disciplinary measure, which could include dismissal. Due to his protected status, the employer had to seek authorization from the Labor Inspectorate to proceed with the dismissal, which was ultimately denied.  

The employee ceased reporting to work, despite having been given notice of the lifting of his precautionary layoff. As a result, his employer decided to apply the presumed resignation procedure to him, scrupulously following the obligations laid down by law:

• A formal notice was sent to the employee by registered letter with acknowledgement of receipt (C. trav., art. L. 1237-1-1).

• This letter invited the employee to return to work or to justify his absence within 15 days of its first presentation (C. trav., art. R. 1237-13).

As the employee did not return to his position, he was presumed to have resigned. Contesting the validity of the termination of his employment contract, he appealed to the Labor Court under the accelerated procedure provided for by law, which largely upheld his claims. The employer appealed against this decision to the Paris Court of Appeal.

According to the Paris Court of Appeal:

• Admittedly, the reasons put forward by the employee did not constitute legitimate reasons within the meaning of article R. 1237-13, in that they did not justify his absence and failure to return to work;

• Even though the Paris Court of Appeal acknowledged that the French Labour Code does not make any specific provision for requesting authorization to terminate the employment of a protected employee in the case of a presumed resignation, it drew a distinction between a unilateral termination resulting from the employee’s own free will (“classic” resignation), which does not require authorization from the Labour Inspectorate, and a legal presumption of resignation, in which the employer is involved in the termination and which therefore requires authorization from the Labour Inspectorate.

Consequently, the Paris Court of Appeal ruled that the termination of the employment contract had been decided in breach of the protective status, since the labor inspectorate had not been contacted, and was therefore null and void. This solution, which will certainly be appealed to the French Supreme Court, reduces the interest in using this procedure for protected employees.