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Legitimate resignation and unemployment benefits: what are the cases for receiving unemployment?

What is a legitimate resignation?

The particularity of the legitimate resignation of an employee is to open the right to unemployment benefits while in principle, only an involuntary loss of work justifies this right. (article L. 5422-1 of the Labor Code). This is referred to as deprivation of employment “similar to involuntary deprivation”.

Resignations carried out under very specific conditions, defined in decree no. 2019-797 of July 26, 2019, which repealed the approval of the unemployment insurance agreement of April 14, 2017 and its associated texts, are qualified as legitimate.

It should be noted that apart from this particularity, the resignation procedure remains the same: notification to the employer (sending of a letter of resignation) and compliance with the notice of resignation by the employee.

What are the cases of legitimate resignation?

It exists 17 cases of legitimate resignation.

The cases of legitimate resignation listed in the decree of July 26, 2019, applicable from November 1, 2019

the change of residence of the employee :

  1. if the employee moves to follow the person with whom he lives as a couple, when the latter moves for a professional reason (employee or not): we speak of resignation for reconciliation of spouse;
  2. when the move is linked to the marriage or PACS of the employee. The date of marriage or Pacs must be separated by a maximum period of 2 months from the date of resignation (whether before or after);
  3. if the move follows domestic violence suffered by the employee (a receipt for the filing of a complaint must be attached to the request);
  4. in the event of placement of a handicapped child in a distant structure, this placement being at the origin of a move;
  5. if the employee is under the age of 18 and must break his contract to follow his parents who move;
  6. if the employee is over 18 years of age and placed under judicial safeguard, curatorship or guardianship, and must break his contract to follow his parent designated as special representative.

Legitimate resignation also concerns 2 cases in which the employee prematurely leaves a new activity :

7. when he left his previous job following a dismissal, contractual termination or the end of fixed-term contract, he did not register with Pôle Emploi, resumed paid employment, but ended it voluntarily in 65 working days following the date of hiring;

8. when he resigned after having worked continuously for at least 3 years (with one or more employers), found a permanent contract, which his new employer terminated within 65 days of the date of hiring.

9. Resignation is legitimate in the event of termination at the initiative of the employee :

  • a contract of integration by the activity to exercise a new employment or to follow a training action;
  • a single integration contract – fixed-term employment initiative contract or a single integration contract – employment support contract to work under a fixed-term employment contract of at least six months or under a permanent employment contract or to follow a qualifying training course.

10. The non-payment of wages. The resignation of the employee is legitimate when he is no longer paid for his periods of work, and he can produce an interim order, allocating him a provision of sums corresponding to salary arrears. According to case law (Cass. soc., March 15, 2006, appeal no. 03-45031), the non-payment of wages justifies taking action, therefore an immediate termination of the employment contract.

11. There is also a legitimate resignation when the employee is victim of a potentially criminal act within the company. Moral or sexual harassment, beatings, thefts, discrimination… Again, a complaint must be filed. If the facts under consideration are serious enough, action is warranted.

12. Resignation is also legitimate if the employee resigned for create or take over a business, without receiving unemployment benefits. The new activity gave rise to the legal formalities of publicity, and the employee must have been accompanied by a professional development adviser. If this new activity ceases for reasons beyond his control within 3 years of the resignation, it will be considered legitimate.

13. The resignation is legitimate if it is motivated by the conclusion a civic service contract or an international solidarity volunteering contract, for a minimum period of 1 year.

14. Is also legitimate the resignation within the framework a joint or indivisible employment contract (co-managers, janitors, etc.), which includes an automatic termination clause: the termination of the employment contract is deemed legitimate if the employee leaves his job due to dismissal, contractual termination or the retirement of his spouse by the employer.

15. The conscience clause of a journalist professional, if its publication ceases or changes direction significantly (if its newspaper is resold, in particular), is also a legitimate reason for resignation, provided that there has been effective payment of compensation by the employer.

16. Since November 1, 2019, a new case of legitimate resignation concerns the maternal assistant which follows the employer’s refusal to have his child vaccinated.

The recovery of unexhausted rights

17. Resignation may also give rise to a recovery of unexhausted rights a previous period of unemployment (article L. 5422-2-1 of the Labor Code), if the new period of work does not exceed 65 days worked or 455 hours worked since the previous opening of rights. The employee who benefits from a remainder of rights and who is registered as a job seeker can leave a resumed job when:

  • the salaried activity resumed lasted less than 6 days worked;
  • or if the intensity of the salaried activity resumed is less than 17 hours per week.

Can the resignation become legitimate after the rejection of the benefit of unemployment insurance?

If the resignation does not fit into these 17 scenarios, the resigning employee will be notified of a decision to rejection of unemployment benefits.

However, this decision is not final: if he is still looking for a job, he may, on request, benefit from a review of his situation after a period of 121 days (4 months) unemployment without compensation by a joint body present in each regional office of Pôle Emploi. She will make her decision according to several criteria:

  • registration on the list of job seekers;
  • membership over a sufficiently long period;
  • evidence of an active job search;
  • or training actions.

In the event of a favorable decision, unemployment benefits are granted from the 122nd day.

Read also >> The 10 signs that show it’s time to quit

Legitimate resignation and unemployment benefits: what are the rights of employees with a retraining project?

Since November 1, 2019, the right to the ARE is open in the event of resignation for professional retraining to workers who:

  • meet specific prior activity conditions: 5 years of seniority are required;
  • pursue a professional retraining project requiring the follow-up of training or a project to create or take over a business.

Before resigning, the employee must request professional development advice (CEP) from an approved operator (article L. 5422-1-1 of the Labor Code), then address a joint committee (unions/employers) of his region a request for certification of the real and serious nature of his project (decree of October 23, 2019 relating to the content of the request for certification of the real and serious nature of the professional projects of resigning employees).

The committee examines in particular the relevance of the training identified and the employment prospects or, for a company, the financing needs and the technical and human resources envisaged. Once the certificate has been obtained, the employee will have 6 months to submit an application for an allowance to Pôle emploi, which will be responsible for monitoring the actual implementation of the project.

Good to know : this new provision has been incorporated into article L. 5422-1 of the Labor Code by the Avenir Professionnel law n° 2018-771 of September 5, 2018 and its implementing decree (implementing decree n° 2019-796 of July 26, 2019).

Read also >> Unemployment insurance: the new rules that impact executives

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