Gardening leave is a term used in employment law and is used in a situation where an employee has left their job but they are asked to stay away from the workplace through their notice period. During this time, the employee will be paid as normal but they must either work at a different location, from home, or in the majority of instances, not at all.
While an employee is placed on garden leave, the requirement for them not to work is not uncommon, neither is being asked not to use company property such as vehicles or electronic equipment.
Employees are also not permitted to contact colleagues or anyone in the workplace for the duration of their garden leave.
Within this period, the employee can still exercise their rights in terms of contractual benefits but they cannot accrue any bonuses but this will depend on the terms and conditions specified within the contract of employment. An employee is also entitled to take any annual leave that they have accrued during garden leave.
This notice period is recognised as gardening leave because employees are not permitted to work for their current employer or another company and therefore have the time to participate in hobbies such as gardening. In some gardening leave arrangements, employees are not permitted to go on holiday so gardening was thought to be the next best activity. Even when an employee is on garden leave, they may still be asked to attend work to meet with HR or management.
Within an employment contract there may be what is known as a restrictive covenant. This is a set of terms that you must comply with during the gardening leave period. Usually these restrictive covenants will state that you cannot start working for another employer (sometimes if it is a competitor) for a set period of time once you have served your notice. You are also prohibited from contacting suppliers, clients and former colleagues.
Situations when gardening leave would apply;
- An employer may place you on gardening leave if they issue you with notice to terminate your employment or it could be when you had in your notice.
- The contract of employment that you signed when you were appointed will determine when gardening leave can be used so it is important to check the terms and conditions of any contract before you agree to it. Usually employers are only allowed to put you on gardening leave for your notice period only. It cannot be used for any other situations.
If you are an employee and you are leaving your employer, either because they have given you notice or you are leaving, it is important to understand that you must still adhere to the terms set out in your contract which will include complying with any confidentiality and data protection clauses.
Reasons for using gardening leave
An employer may have good reason for placing employees on gardening leave and it is often used as a strategy to avoid employees from obtaining information about client details or other confidential business information. It is also used in situations where an employee may have a negative impact on other employees or making contact with clients. Gardening leave is usually reserved for employees who occupy senior roles or those who have access to confidential or sensitive company data.
In some situations, gardening leave is used to safeguard the interests of the business in relation to competitors. As an example, an employee may be leaving one company and joining a competitor. In this instance, they may be asked to take gardening leave so they are prevented from accessing confidential business or client information that could potentially be passed on to a competitor once they have left.
An employer can only use gardening leave if the employees contract of employment includes a gardening leave clause. The rights of the employer to request that the employee complete gardening leave will depend on the nature of the contract. If possible, the employer should make sure that they clearly state in unambiguous language that they can exercise the right of gardening leave and what this means. Employers can also incorporate restrictive covenants into contracts which state what employees cannot do once they have left the company.
If the employer fails to include any clauses which relate to gardening leave, this can present significant problems and can be a mistake. Unless your contract of employment specifically states that the employer can exercise their rights under a gardening leave clause, the employer cannot enforce it. If they do, they run the risk of being liable for a breach of contract claim. Employers should take legal advice when drafting contracts of employment to ensure that if they wish to include a gardening leave clause, it is incorporated into the standard contract of employment and it is clearly stated that they can exercise this right if the employee is served notice or if they decide to leave. Failure to do so could prove extremely costly.
Gardening leave: Main points
In summary, gardening leave can only be enforced if it has been incorporated into the employees contract.
- Even though the employee is no longer at work during gardening leave they are still bound by their contractual obligations until the end of their notice period/gardening leave,/li>
- Employees must return to work on instruction from the employer
- Employees are not permitted to contact clients of the business if they leave, without obtaining express permission from their employer
- An employee can be prevented from taking up any form of work during gardening leave including self employment
- During gardening leave an employee should still receive their usual salary in addition to any workplace benefits and bonuses as outlined in their contract
Before including this type of clause into an employment contract, an employer is strongly advised to seek professional legal advice to make sure that it is both practically and legally effective. The clause should also be drafted with the employers interests in mind.