You are considered to be on garden leave if, during your notice period, your employer has asked you not to attend the workplace, or has asked you to work from home or another location.
Whether you have been placed on garden leave after handing in your notice, having accepted a redundancy package, or having been suspended from your role, you will still be contracted to the employer during this time. Both you and your employer remain bound by the terms of the employment contract and are expected to fulfil your respective contractual duties.
As such, you should continue to be in receipt of pay and employment benefits until the end of your contracted notice period and your contract terminates, irrespective of whether you will be required to work during your notice.
As an employee, garden leave could be welcomed as a rare opportunity for time away from the workplace with full pay and benefits, but it could also necessitate a delay in starting a new role and enforce a protracted and unwanted period of time ‘out of action’, which could be professionally detrimental.
When is garden leave allowed?
To understand if you are required to go on garden leave, you should check the terms of your contract of employment.
Garden leave potentially causes both parties to be in breach of contract – specifically the implied contract term that requires the employer to provide the work on offer and for the employee to undertake this work.
To avoid this breach of contract arising, express provision in the contract of employment will be required giving the employer the right to put the employee on garden leave in the event that notice of the termination of the contract is given by either party.
Depending on the provisions in your contract, you could be required to spend the entirety of your notice period on garden leave, or your employer could require you to begin garden leave at any point between the start and end of your notice period.
Whether your employer is willing to negotiate the terms of your garden leave will depend on the circumstances of the matter. For example, there may be more likelihood of flexibility if garden leave is as a result of redundancy rather than you having handed in your notice to join a competitor company.
Garden leave – what employees are not permitted to do
While on garden leave employees are still under contract with their employer. As such, there are limitations as to what employees can and cannot do while on garden leave. These will be prescribed under the contract of employment and implied contract terms. However, in most cases employees must refrain from the following or risk being in breach of contract:
a) Start working for a new company. The employee is still under contract and so generally would not be able to begin working for a new employer.
b) Begin self-employed work, unless specifically agreed with your company. As the employee is still under contract, to undertake self-employed work would be equivalent to working for a new employer and a breach of contract. However, in some circumstances, the employer will allow the employee to begin some self-employed tasks as long as they are not in competition.
c) Take holiday over the days owed to them or without following the company’s process and giving sufficient notice. The employer has the right to ask the employee to return to work at any point up until the final date of employment, so the employee needs to remain contactable and able to commute to work with minimal notice.
d) Refuse to complete any work asked of them by the employer, within reason of what could be expected of their role and in the context of working from home.
e) Refuse to return to work if the employer requests it. In rare cases the employer may request the employee to return to the office either for a few days or until their contract terminates. Unless the employees contract specifically states otherwise, the employee must work in the office till the end of their contract.
f) Refuse to return equipment if asked. Any equipment, such as laptops, company cars or phones, which have been provided by the company for work purposes must be returned if and when the contract or employer request it.
g) Breach the terms of their garden leave as stated in the contract. Employees must carefully read the terms of their garden leave as breaching it can lead to employment termination and the negative repercussions. Breaches of contract usually include the stealing of information, data and clients, for example through contacting clients.
Garden leave – what employees are permitted to do
While on garden leave, employees still have the rights of a normal employee of the company and there are a number of activities available to them.
Some of the actions an employee on garden leave can take include:
a) Looking for a new job. If an employee has been placed on garden leave due to being offered redundancy or suspension from their role, the employee is entitled to begin actively seeking a new job, including attending interviews as long as they do not interfere with any work they are expected to carry out for their employer. The employee cannot start a new role until the end of their employment contract.
b) Taking any remaining holiday days where prior approval has been granted in the usual way for annual leave. If the employee has any remaining holiday days they are entitled, often even encouraged, to submit a holiday request and take them while on garden leave. Employees should follow their companies usual holiday policy and notice period when on garden leave.
c) Take time off to relax. Some companies expect the employee to continue working from home or away from the office, but often the work they are expected to do is reduced or they are not expected to work at all. As long as employees remain contactable should they be required, they can use garden leave as time to relax, spend time on their hobbies, or learning new skills.
When to seek legal advice
The primary purpose of garden leave is to protect the interests of the employer without breaching the employee’s right to a notice period.
Garden leave offers a solution where the employer cannot or does not want to terminate a contract of employment but concurrently does not want the individual at the place of work, which could be for a number of reasons.
Employers can use garden leave to limit employees’ involvement in the organisation and restrict the employee’s access to the workplace, including sensitive or commercial information or to avoid other potential issues such as ‘poaching’ other employees. There may be concerns that the employee will be disruptive at the place of work, causing customer service or team-related issues.
Garden leave could be used to delay an employee starting employment with a competitor organisation where there is no restrictive covenant in the contract of employment to stop the employee from doing so.
If you are given asked to take garden leave, you should first check your contract of employment for any express terms. If you are concerned about being placed on garden leave, take legal advice to understand your options.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
