Garden leave (sometimes mistakenly known as ‘gardening leave’) is when an employee is required to be away from the workplace during their notice period but they remain an employee.
Because they remain an employee, they are entitled to regular pay and the benefits they’d normally receive whilst working, as well as being tied to their normal contractual obligations (other than having to physically carry out or be at work).
Whilst an employee is on garden leave, you’re not required to provide them with any work or assignments.
Why use garden leave?
There are times when an employee has resigned from their position or has been dismissed with notice by their employer and the company doesn’t require them to attend the workplace.
Garden leave is usually a measure to help employers protect their business’ interests, for example by preventing an employee who is leaving from having access to sensitive/confidential information that might assist them or a competitor.
It’s normally used for more senior employees or roles that have access to sensitive/confidential information. Garden leave also prevents an employee from starting work with a competitor straight away until their notice period has been served, meaning any sensitive information they have might be less relevant.
When can you use garden leave and how do you place someone on garden leave?
It’s important to understand garden leave can only be used if there is an appropriate clause in the employee’s employment contract which gives the employer the ability to exercise this right.
Once you’ve established there’s an appropriate clause in the employment contract, you should instruct your employee not to perform any services for your business or attend the workplace, as well as no longer using company equipment i.e. phone or laptop and not to contact customers, clients, suppliers and other employees. This should always be confirmed in writing.
The risks of garden leave for employers
If you don’t have a well drafted clause in your employee’s employment contract and you place them on garden leave, you risk possible breach of contract and constructive dismissal claims. You might also lose your rights to enforce any restrictive covenants post-termination.
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