Question 55. During an employment relationship under the LC, does the Employer have the right to request the Employee to stay home (i.e. garden leave) and only go to the workplace at the Employer’s request, but the Employee is still entitled to receive full salary and benefits according to LC and the CLA (if any)?


According to Article 99 of the Labour Code, in some circumstances, the Employer may request the Employee to cease their work and pay him or her salary on ceasing work. The Labour Code and relevant guiding documents do not prescribe the maximum ceasing time. However, when requesting the Employee to cease his or her work according to the above provision, the Employer must be able to prove the element of fault on the Employee’s side (e.g. lose the laptop which needs time to be replaced, damage the production line, etc.) or on the Employer’s side (business losses, the enterprise’s server cannot be accessed, etc.) or other objective reasons (incidents of power, water, natural disasters, fire, etc.) which force the Employee to cease his or her work. Therefore, if the Employer cannot justify the above reasons for ceasing work, they cannot request the Employee to stay at home from work.

Considering the nature of an employment relationship which is a social relationship arising from the employment of workers, payment of salary[1], the arrangement of work assignments by the Employer and the performance of assignments by the Employee constitute the basic elements forming the employment relationship. Therefore, in principle, the Employer cannot request the Employee to cease working during the term of the LC if there is not an event that forces the Employee to cease his or her work according to Article 99 of the Labour Code. The Employee may object to the Employer’s request. It is because, besides the salary and benefits paid by the Employer, the Employee also has the opportunity to receive bonuses for work performance and consideration for salary increases. If he or she stays at home without work, there will be no basis for the Employee to be considered for bonus and salary increase by the Employer, and thus, indirectly, it will lose a significant source of income from the Employee’s salary. Besides, when going to work, the Employee has the opportunity to accumulate for himself or herself work experience, develop relationships with his or her colleagues, community and society arising from the employment relationship with the Employer. Thus, receiving full salary but staying at home cannot bring all those default values and benefits to the Employee.

[1]Article 3.5 of the Labour Code