Job abandonment was an uncomfortable situation for French employers until the labour market law of 21 December 2022. To end the employment contract, an employer had to follow the full dismissal procedure on grounds attributable to the employee. Articles L. 1237-1-1 and R. 1237-13 of the French Labour Code now bring France closer to the Portuguese rules in force since 2009. The reform introduces the presumption of abandonment already established by Article 403(2) of the Portuguese Labour Code: “Job abandonment is presumed where an employee is absent for at least 10 consecutive working days without the employer being informed of the reason.”
In principle, abandonment involves absence accompanied by facts that, in all probability, indicate an intention not to return. Both countries nevertheless allow employers to rely on a presumption by meeting its legal conditions. These require a period of absence and notice by registered letter with acknowledgement of receipt. In Portugal the period is 10 consecutive working days; in France it is at least 15 days without a response. In Portugal, the employer must notify the employee of the facts constituting abandonment or its presumption at the last known address. In France, the letter starts the 15-day period in which the employee may justify the absence. Only expiry without justification makes the presumption effective.
Despite receiving notice, employees may rebut the presumption. In Portugal, merely explaining the absence is insufficient: the employee must prove force majeure prevented timely notification. In France a legitimate reason can be invoked without establishing force majeure. Employees therefore have a wider range of grounds for rebuttal in France. Disputes over the validity of the reason go to the employment tribunal, which in France must decide within one month of the proceedings being brought.
Where no justification exists, both countries treat abandonment as termination at the employee’s initiative, equivalent to resignation. The employee receives no compensation and may instead owe compensation to the employer. In Portugal, Article 401 of the Labour Code, concerning termination without serving notice, governs compensation. In France, the employer’s compensation is more limited. In either country, employers must comply rigorously with the abandonment rules and pay particular attention to the contents of the notice letter.
Dr. Pedro Emanuel de OLIVEIRA
Lawyer