What is Garden Leave?
A garden leave clause in your contract of employment allows your employer to exclude you from work for the duration of your notice period. This can be a key protection for employers, along with post-termination restrictive covenants.
Garden leave is something many employers are keen on, especially where you are a senior executive with important client contacts and confidential information. Putting you on garden leave takes you out of the equation for the period of your notice. This means you are kept away from clients, colleagues and confidential information, whilst at the same time preventing you from joining a competitor. You may also still have to be on standby in case your employer requires all or part of your services for the garden leave period.
If your employer tries to force you to go on garden leave without an express garden leave provision in your contract, you could claim your employer is in breach and that you have been “constructively dismissed“. This is especially if you are excluded from the business and can show you need to work in order to preserve your skills. A valid claim could also render your notice period and any restrictive covenants in your contract void.
What steps can I take if faced with a Garden Leave Clause?
The biggest problem you face if you have a garden leave clause is that you are still contracted with your old employer, and at the same time are being kept out of the market. You could try to approach your employer and see if they will agree to waive the garden leave so you can leave early. Some employers may be receptive to this, especially if you are planning to move into a non-competitive business and you are not leaving under a cloud.
If your employer proves to be stubborn, you could take a chance and refuse to comply with being placed on garden leave and start work with a new employer. Your old employer would then have to sue for damages, but in reality this would only be worthwhile if they could prove a loss resulting from your breach. Alternatively, they could try to apply for an injunction to stop you from working elsewhere. This is, however, expensive and risky for an employer, as the courts will only enforce garden leave where necessary to protect their business. You should nevertheless still be careful if you take this step as you could put your job reference in jeopardy.
You may alternatively wish to take a risk and participate in a new (and possibly competitive) activity whilst you are on garden leave- on the basis that your employer is unlikely to find out. Again, you do need to be careful, especially if you have a widely drafted garden leave clause which reiterates the obligation not to work elsewhere and to maintain loyalty to your employer.
[info] It is always best to read your employment contract and take legal advice before taking steps which could put you in breach.[/info]
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