When you hand in your notice at work, you may be told not to attend the workplace for the remainder of your notice period. Instead, you could be placed on what is commonly known as garden leave.
Garden leave can be confusing for both employers and employees. This blog explains what garden leave means, how it works in practice, and when it might apply.
What is Garden Leave?
Garden leave occurs when an employee who is leaving a role (due to resignation, redundancy, or dismissal) is instructed not to attend work or carry out their normal duties during all or part of their notice period.
During garden leave, the employee remains employed but is effectively removed from the day-to-day business. Employers typically use garden leave to:
- Keep employees out of competitive markets
- Protect sensitive business information
- Safeguard client relationships and internal knowledge
The information an employer may be seeking to protect can include pricing structures, high-level technical or commercial knowledge, strategic plans, or key customer and supplier contacts.
Garden leave is often used alongside restrictive covenants, which are contractual clauses designed to prevent departing employees from competing with the business or soliciting clients for a defined period after employment ends.
In some cases, garden leave may be instigated by the employee with the employer’s agreement, particularly as part of a negotiated exit. Where this happens, the arrangement is usually documented in writing to avoid any ambiguity.
What Happens During Garden Leave?
While on garden leave, the individual remains contractually employed but is kept away from the business. Typically, during this period the employee is not required to attend work or perform their usual duties. Thy should also not communicate with clients and colleagues and not represent themselves as acting on behalf of the employer.
However, employers are usually entitled to request information or assistance, ask the employee to support handover arrangements and ask them to return to work if necessary. Throughout Garden Leave, the contract of employment continues which means the employee should still be paid their normal salary and provided with all contractual obligations. This includes being bound by duties such as acting in good faith and maintaining confidentiality.
An employee on garden leave cannot start work for another employer or undertake self-employed work during this period unless they have the express agreement of their current employer.
How Long Does Garden Leave Last?
The length of garden leave is determined by the terms of the employment contract.
In most cases:
- Garden leave lasts for the duration of the employee’s notice period
- Senior employees often have longer notice periods and therefore longer garden leave
While garden leave can last several months, it would be unusual for it to extend beyond six months.
When Should Garden Leave Be Avoided?
Because employees remain entitled to full pay and benefits, garden leave can be costly. Employers should therefore think carefully before imposing it.
Before placing an employee on garden leave, employers must ensure there is an express garden leave clause in the contract of employment entitling them to do so.
There are also practical considerations. Some employees may view garden leave not as paid time off, but as an unfair restriction on their right to work. In such cases, employers should be prepared for the possibility of having to enforce the garden leave provisions, particularly if an employee refuses to comply.
Can You Put Someone on Garden Leave Without a Clause in Contract?
If there is no express garden leave clause, the employer and employee may still agree that garden leave is a suitable course of action.
However, if an employer unilaterally places an employee on garden leave without contractual authority, the employee may be able to bring a breach of contract claim on the basis that they have been excluded from work.
When assessing such claims, courts will generally consider whether the employee has a contractual right to work. If such a right exists, excluding the employee without agreement may amount to a breach.
What Happens if an Employee Breaches Garden Leave?
If an employee breaches the terms of garden leave, for example by working for a competitor or disclosing confidential information, the employer may take legal action.
This can include:
- Applying for an injunction to prevent further breaches
- Pursuing a claim for damages
- Taking disciplinary or contractual action where appropriate
How We Can Help
Garden leave can be an effective tool for protecting business interests, but it must be used correctly. Our employment law specialists advise both employers and employees on company policies and procedures.
If you need advice on garden leave or any aspect of employment contracts, contact our employment law team today for expert guidance.
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Author
sarahrobinson@premier-legal.co.uk
Sarah Robinson is the Managing Partner and has specialised exclusively in employment law since qualifying as a solicitor in 1996.
Sarah has considerable experience of representing clients in many different industry sectors including insurance and financial services, corporate finance, technology, legal services, automotive, hotel and catering and media as well as the public sector.
Areas of particular interest include restrictive covenants, TUPE and advising in relation to discrimination.