Garden Leave

Caragh Bailey
11/03/2021
57
5 min read
Garden Leave from Employment Law Friend

If you have resigned from your job, or your position has been terminated, your employer may not require you to attend work anymore, this is called garden(ing) leave. We explain how this affects you and what rights you have.

Garden leave meaning

The term garden, or gardening leave is given when you have resigned, or your employment has been terminated and you are asked not to attend your workplace whilst serving your notice period.

It is common to be put on garden leave if you are leaving to work for a competitor, in order to protect the companies confidential data. By keeping you out of the office and blocking your access to passwords, files, data, clients and colleagues for the duration of your notice period, the company limit your ability to take this useful data to their competition. The terms of your companies garden leave clause should be stated in your contract of employment.

Garden leave rules

  • You still remain on the pay roll until the end of your notice period, unless under certain circumstances which we explain below.
  • You may be sent to an alternative site, or asked to work from home, or even not work at all.
  • Gardening leave often comes with a negative connotation, almost like being suspended from work, but there are a number of reasons you may not be required to go to work.
  • In most cases it prohibits you from working for a competitor until the end of your notice period. This is known as a restrictive covenant.
  • Your employer may require you to remain contactable and on standby during your leave should they require your services.
  • The length of your leave depends on the length of your contractual notice period.

Reasons for gardening leave vary and may include but are not limited to:
  • To stop you from being a negative influence to the working environment.
  • To safeguard any new and confidential information that might be of use to a competitor.
  • To keep you out of contact with important clients and company partners.
  • Your employer may have found a new employee to fill your position and therefore not require you during the transition period.
  • They may just feel it’s more comfortable for both parties for you not to attend work.

Garden Leave employee rights

You still have your statutory rights and contractual rights if you are put on gardening leave.

If you do not agree with your employers decision to put you on gardening leave, and there is no clause to say that your employer has a contractual right to do so, then you may be entitled to resign and make a claim of constructive dismissal. However, it may not be worth bringing a claim, as most tribunal rewards are based on loss of earnings and you receive full pay on gardening leave.

Garden leave can’t be used as a way of terminating your employment.

Garden Leave pay

As an employee on gardening leave, you are still entitled to your normal pay and benefits. You can also continue to accrue holiday pay during this leave.

Gardening leave redundancy

If you are facing redundancy and garden leave you are still under contractual obligation. You will still receive your full salary and any redundancy benefits until your notice period comes to an end.

If your employer fails to pay you your full salary, then you may be able to make a claim to an employment tribunal for unlawful deduction of wages.

Remember, being on gardening leave means you are still employed and you can’t breach the terms of your contract, this could amount to gross misconduct and your employer could dismiss you without notice.

If you are looking for further advice on this then contact one of our employment solicitors.

Frequently Asked Questions
Whilst on garden leave you are still under contract with your employer and in most cases you will still be getting paid, your employment doesn’t end until your notice period ends. If you were to take another job whilst on leave, you would be in breach of contract. You might wish to discuss the possibility of leaving early with your employer who may agree to let you go.
It is not uncommon for your employment contract to contain a gardening leave clause and as long as you are still being paid, there is often no contractual right for work your notice period. These clauses are enforceable if they are in your employment contract.
You are still held under the terms of your contract and any restrictions this might state. If you breach your contract, your employer might have reason to dismiss you without notice. Your employer cannot dismiss whilst you are on gardening leave and within your notice period, without following the fair dismissal procedure. (Click here to find out more about unfair dismissal).
Being placed on gardening leave is very much at your employers discretion, and if you ask for it it could be perceived negatively as just wanting paid time off. If you are intending to move to a rival company, it may be worth mentioning this when you resign, as it would normally be in your employer's best interest to place you on gardening leave.

Do you have a problem with your employer?
There is much more to winning your case than simply being in the right, our specialist employment solicitors know all the laws and tactics, to make sure you get the best chance at a fair settlement. Get in contact with us and see how we can help.

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This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of our company. For employment law advice you can click here to organise a meeting with one of our panel of employment law solicitors.

 
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