Desertion does no longer automatically amount to gross misconduct

In this case, the French Supreme Court had to rule on the qualification of gross misconduct for an employee’s desertion, who despite formal notices from the company refused to justify his absences and to return to work for 6 consecutive weeks.

Surprisingly and contradicting a well-established position, the French Supreme Court considered that the employee’s behavior was not constitutive of gross misconduct, noting that:

– The employee had 20 years of service;
– The employee’s absence was linked to many personal difficulties he encountered and of which the employer was informed;
– The employee’s absence had not disrupted the proper functioning of the company’s department in which he worked.

Therefore, according to the French Supreme Court, desertion does no longer automatically amount to gross misconduct which would deprive the employee of severance pay and compensation in lieu of notice.

Accordingly, in the event of an employee’s desertion, it will be necessary in practice to specifically mention in the termination letter how, taking into account the particular circumstances of the case (length of service, duties of the employee, etc.), the employee’s unjustified absence disrupts the proper functioning of the department in which he works, it being specified that such disruption must still exist at the time of notification.

The French Supreme Court., 26 September 2018 n°17-17.563