Gardening leave is when an employee gives an employer notice, or an employee resigns, but they are sent home or told to stay away from work for the duration of their notice period on full, normal pay.
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Why do employers use gardening leave?
Gardening leave is commonly used by employers to prevent employees who are due to leave the company from being privy to confidential or sensitive information; having access to clients or customers; or from encouraging other employees to leave.
If the employee has a new job with a competitor, gardening leave may be used by the employer to ensure that information is not gained and passed to the competitor. During the gardening-leave period, the employee’s access to certain information is usually restricted or altogether denied. However, they are still under a contract of employment and can be asked to return to work by the employer.
What rights and restrictions is the employee subject to?
Whether an employer can send an employee on gardening leave usually depends on whether the contract of employment contains a term to this effect. It is preferable for an employer to include a separate and express garden-leave clause within contracts of employment. This may be in addition to restrictive covenants, which restrict employee’s activities once the contract has been terminated.
Whilst an employee is on gardening leave, he may be subject to the following rights and restrictions:
- he may not be required to attend work or undertake any work;
- he is still subject to the terms of his employment contract;
- he is still subject to contractual duties, such as a duty of confidentiality and must maintain obligations such as good faith;
- if requested by the employer, the employee must return to work during the gardening-leave period;
- the employee is still entitled to full pay and any company benefits, including bonuses;
- he may be required to take any outstanding annual leave
- he may be prohibited from contacting any clients, customers, suppliers or contacts of the employer without prior consent;
- he may be prohibited from working elsewhere or commencing employment with a new employer or on a self-employed basis during the garden-leave period; and
- he may not be allowed to make any statements in respect of the employer to the media.
In addition, the employer can, in some circumstances, require the employee to carry out work which is different from the duties they normally carry out; or appoint someone to carry out their duties for them (at their discretion).
If an employee has been put on gardening leave and feels that it is unfair or breaches the terms of their contract of employment, they may wish to seek legal advice. They may also wish to seek advice on what activities they can undertake during gardening leave without breaching any terms of their employment contract or the terms of their gardening leave.
If you are an employer, you may wish to seek legal advice on the drafting of a garden-leave clause within a contract of employment in order to ensure that it is enforceable; and also for advice on the operation of such a clause when dismissal of an employee is contemplated.
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