In Hong Kong, employers have a right to suspend employees from employment.
Under section 11 of the Employment Ordinance, an employer may without notice or payment in lieu suspend any employee from employment for up to 14 days: (a) as a disciplinary measure for any reason for which the employer could have summarily dismissed the employee; (b) pending a decision by the employer as to whether or not it will exercise its right to summarily dismiss the employee; or (c) pending the outcome of any criminal proceedings against the employee arising out of or connected with his or her employment. If the criminal proceedings are not concluded within the period of 14 days, the suspension may be extended until the conclusion of the criminal proceedings.
An employee who is suspended from employment has a right to claim constructive dismissal by the employer at any time during the period of suspension. In such event, the employee will be able to claim all accrued statutory entitlements.
Occasionally, some employers may find that a suspension period of 14 days is insufficient for them to conclude the investigation into the employees’ conduct. The employer may consider it necessary for the employee to continue staying away from the workplace whilst the investigation continues. However, the Employment Ordinance is silent as to whether the employment can be suspended beyond the initial period of 14 days or whether any suspension beyond the 14-day period should be paid or unpaid. Accordingly, it is suggested that the employer should ask the employee to take a paid leave of absence commencing immediately following the initial suspension period of 14 days. The paid leave of absence should be for a reasonable period of time, say 2 to 3 weeks. If the employer requests the employee to take a paid leave of absence for an unreasonably lengthy period (for example, a few months), the employee may decide to bring a claim in constructive dismissal against the employer on the ground that the employer is preventing him or her to work.
In the event it is found that the employee has committed misconduct upon the conclusion of the investigation, the company should take disciplinary measures against the employee.