Statutory suspension, administrative leave, and garden leav
There are various circumstances where an employee may need to temporarily restrict an employee’s access to the workplace — for example, to investigate misconduct, complaints, or protect confidential information. In Hong Kong, there are three commonly used approaches to manage such situations: statutory suspension under s. 11 of the Employment Ordinance (EO), administrative leave, and garden leave. A clear understanding of these options is essential for minimising exposure to constructive dismissal claims, termination payment disputes and reputational harm.
Section 11 of the EO permits an employer to suspend an employee without notice or payment in lieu, but only in strictly defined circumstances: (1) as a disciplinary measure for employee misconduct that would justify summary dismissal; (2) while the employer decides whether to summarily dismiss an employee; or (3) pending the outcome of criminal proceedings against an employee related to employment.
In Lengler Werner v. Hong Kong Express Airways Ltd [2021] HKCFI 1333, the Court of First Instance clarified that “suspension from employment” under s. 11 means a complete cessation of all duties and obligations — partial suspension from job duties while continuing to pay salary is distinct from suspension from employment. Section 11 is not concerned with partial suspension from duties, but rather with a full suspension of the employment relationship, where the...
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