Garden Leave – Guide to How it Works

What is Garden Leave?

There are times when either an employee has resigned from their position, or they have been dismissed by the company, with notice, that the company do not require the employee to work their notice of employment, as per their contract of employment, so employees can be placed on garden leave.

Garden Leave is when an employee is required to serve their notice period at home, rather than attending the workplace.

Garden Leave is usually used as a protective measure to prevent an employee who is leaving having access to information or sensitive date that would be useful to a competitor or that would assist that employee setting up in competition with the employer.

During a period of garden leave, an employer is under no obligation to assign any duties and provide work to the employee for their notice period.

Putting employees on garden leave involves telling employees to

  • Not attend company premises
  • Not complete any work or services for the employer
  • Not use any company equipment
  • Not contact any customers, client’s or colleagues..

During Garden leave employees are still an employee of the company and continue to be paid in the normal way.

Pros and cons of Garden Leave

 While on Garden Leave an employee must:

  • be available to work during their normal working hours if required (example- to provide a handover of tasks). The employee will receive their normal salary, commission and benefits and have their normal contractual rights.
  • maintain confidentiality and act in good faith towards the employer.
  • be obliged to perform any duties requested by the employer which could include being asked to return to work or to answer any queries that may arise.
  • not take up new employment during any period of Garden Leave.

A period of Garden Leave cannot exceed normal notice period, which is usually between 1 and 12 weeks, however if an employee has a notice period which is six months or more, an employer may not enforce garden leave for the full notice period as a court could determine this period is longer than what is necessary to protect the business.

For employers to instruct employees to stay away from the workplace and be placed on Garden Leave there must be a specific clause in the contract of employment and the application of the leave must be reasonable. A Garden Leave clause may be in addition to a ‘non-compete’ or restricted covenant clause in the contract of employment.

Where there is no Garden Leave clause in the contract of employment, an employee could potentially argue that being placed on Garden Leave is a repudiatory breach of contract and may be able to claim constructive dismissal.

Employers may use garden leave to their advantage to keep an employee away from competitors, customers, clients and confidential information. Garden leave allows employers to prevent an employee starting a new role straight away with a competitor, therefore meaning any information they may have will be older and maybe less relevant

Usually, garden leave is used for more senior roles / sales personnel as these employees have access to more confidential information.

Frequently Asked Questions on Garden Leave

What are the rules of garden leave?

Garden Leave is used when an employee has resigned from their position, or had their contract terminated and is then required to serve their notice period at home, rather than attending the workplace.

Why might an employee get it?

Garden Leave is usually used as a protective measure to prevent an employee having access to confidential information.

Is garden leave bad?

No garden leave is not bad, it is just a preventative measure and a way of an employee being paid for their notice period, but not being required to work that notice period. A period of garden leave will not hinder an employee’s career prospects unless the terms have been breached.

How long is garden leave for?

Garden leave can be for the whole duration of an employee’s notice period, which is usually between 1 and 12 weeks.

Is garden leave paid at full pay?

Yes,  the same pay and benefits are paid on garden leave as if an employee was  at work.

Can an employee start another job while on garden leave?

An employer can request an employee works when on garden leave so therefore employees should not start another role while on garden leave, unless the existing employer agrees to this.

Can I request garden leave?

Yes, garden leave can be requested by an employee as part of coming to an agreement on terms over leaving a position.  Contracts of employment must give the right to use garden leave.

If you would like further guidance or information, please contact Clover HR on 0121 516 0299 or email us at info@cloverhr.co.uk

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