Gardening Leave – A guide
Gardening leave is used to describe when someone has resigned or dismissed and is required to spend a period of time away from work usually at home.
Why is gardening leave used?
Gardening leave is a measure that some employers use to protect themselves by preventing the departing employee having access to confidential information or from contacting potential suppliers and customers that could be useful to a competitor. It could also prevent them from enticing other staff to leave with them.
When can it be used?
Gardening leave can be used provided the employment contract contains a specific Clause to this effect. There has been a number of cases where it has been determined whether gardening leave constitutes a breach of employee’s right to work. Gardening leave Clauses are often in addition to a none compete clause preventing an employee from working in a certain area or field for a set period of time after they have left the business.
If the matter went to court or an employment tribunal the court will consider whether the employee actually has a right to work. There is no implied contractual right to work but there is a right to be paid. The court will consider a number of factors such as whether placing the employee on gardening leave will affect their financial benefits such as if the employee was on course to receive a bonus and gardening leave prevented them from achieving that bonus then it would have a financial detriment to them which might make the court more reluctant to in force such a Clause.
What happens to the employee when they are on Gardening Leave?
Whilst a employee is on gardening leave they are still obliged to make themselves available to come into work and indeed an employee can call them back. They are still covered by all their contractual duties so this includes acting in the best interest of the business they also cannot breach any rules around confidentially or make contact with other customers or business contacts. Gardening leave can only last as long as the employee’s notice period and cannot be excessive and the employee still benefits of their employment for example private health insurance use of work-related equipment’s such as laptops, phone, vehicles. The employee also continues to accrue holiday pay during the gardening leave even though they are not actually attending work so the employer would be required to pay them for that holiday entitlement.
We hope this guide is useful to you and understanding the basics of gardening leave and if you are placed on Gardening leave and require further advice please do not hesitate to email at: firstname.lastname@example.org or call 01341 281 108