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9 juni 2020

Beijing issues Q&A regarding certain employment matters in Covid-19

On April 29, 2020, The Beijing High People’s Court and The Beijing Labour and Personnel Dispute Arbitration Commission jointly issued a set of Answers to Questions Concerning the Application of Law in the Trial of Employment Dispute Cases During the Prevention and Control of Covid-19. Some highlights of those answers are listed below. Click on the questions below to read the answers.

Q1. What if the employer offered a job to the employee before the Chinese Spring Festival holiday and agreed on that the employee would commence work after the holiday, but the employee was unable to start as scheduled due to Covid-19? When was the actual

The employment relationship shall be established as of the employee’s actual start date. However, If the employer has assigned work to the employee in a flexible way, the date when the employee starts to work shall be the date of the starting time of the employment relationship.

Our comments

A judge from Chaoyang district court in Beijing has declared that if the employer has already sent the offer letter to the employee, then the offer cannot be withdrawn unilaterally by the employer only by reason of Covid-19, otherwise the liability of fault in conclusion of a contract might be incurred. Based on the above answer, if the employer has previously agreed on the starting time but is unable to arrange the commencement of the contract due to Covid-19, the employer can first arrange the work in a flexible way, or suspend the arrangement for commencing the employment. It is noted that when the actual employment starts, the labour relationship starts correspondingly.

Q2. If the employer is unable to sign or renew the written employment contract with the employee due to the pandemic, is the employee entitled to demand double wage payments for the employer’s failure to conclude a written employment contract?

If the employer can provide evidence that he/she has proposed to conclude or renew the contract, but it is objectively unable to do so due to the impact of Covid-19, then the demand for double wage payments from the employee shall not be supported.

Our Comments

The Labour Contract Law of the PRC has stipulated that the employer shall pay double wage if he/she fails to conclude a written labour contract after the lapse of more than one month when the actual employment relationship starts. However, given the pandemic is an unpredictable circumstance which makes it more difficult to conclude the contract in the traditional way, it is not appropriate to impose the penalty on the employer if he/she doesn’t have malicious intent.

But still, we recommend the company should pay attention to keep the relevant evidence to avoid being invoked by the penalty.

Also, the employer and the employee may mutually agree to execute a written employment contract in electronic form according to the relevant law. We would recommend the employer select a professional service institution with the qualification of electronic signature service recognized by the authority to ensure that the content of the electronic contract signed with the electronic signature is complete, accurate and not tampered with.

Q3. What if an employee is confirmed or suspected of having Covid-19, infected but asymptomatic, or has come into close contact with a confirmed or suspected patient, how should the employee be paid during the pandemic?

The employer may choose not to pay the non-fixed portion of the wage, for instance, the performance-based compensation, bonuses and commission, and transportation/meal subsidies. However, the base salary and other guaranteed portions of the normal wage shall be paid up.

Our Comments

The arrangement above is a good balance between protecting the benefits of employers and the employees since the employers are also going through a difficult period economically.

Q4. If the employer is not willing to return to work after the company has officially and legally gone back to the normal operation, is the employer entitled to terminate the labour contract?

Yes, the employer may terminate the employment contract according to the labour law if the employer can prove that the employee refuses to return after being urged or persuaded, with no proper reasons.

Our Comments

Given the special background of the pandemic, we would recommend that employers should firstly understand the real reasons behind the refusal, take efforts to persuade the employee, and preserve the evidence.

We will continue to keep track of the changes of relevant policies and give feedback to you. If you need further information, please do not hesitate to contact our Asia team: Joost Vrancken Peeters at +31620210657 or jvp@lgga.nl or Ye Yu at +31639267995 or y.yu@lgga.nl.