Definition
A contractual provision that allows an employer to require an employee to stay away from the workplace and not perform their duties during their notice period, while continuing to receive full pay and benefits.
UK Context
UK law recognises garden leave as a legitimate employer tool, but it must be supported by an express contractual term. Without one, enforcing garden leave may breach the implied duty to provide work (William Hill Organisation v Tucker, 1998). Courts consider garden leave when assessing the reasonableness of post-termination restrictions, and excessive combined periods may be found unreasonable. During garden leave, the employee remains bound by the duty of fidelity and cannot work for a competitor.
Best Practices
- Include an express garden leave clause in employment contracts, particularly for senior and client-facing roles
- Specify that garden leave periods count toward any post-termination restriction periods
- Ensure the garden leave clause preserves the employer's right to require the employee to return to work if needed
- Continue all pay and benefits during garden leave to maintain the employee's contractual obligations
- Use garden leave strategically based on the specific risks associated with each departing employee
Frequently Asked Questions
Can an employer put someone on garden leave without a contractual clause?
It is risky. Without an express contractual right, placing an employee on garden leave may breach the implied term to provide work (for roles where providing work is considered essential) or constitute a unilateral variation of terms. Having an express clause removes this risk.
Does the employee have to be available during garden leave?
Yes, unless the contract states otherwise. During garden leave, the employee remains employed and should be available if the employer needs them. They are bound by their contractual obligations including the duty of fidelity and cannot work for another employer without permission.
Can garden leave and non-compete clauses run concurrently?
If the contract specifies that garden leave offsets the restriction period, they run consecutively rather than concurrently, reducing the total period the employee is restricted. Courts may also take garden leave into account when assessing whether a post-termination restriction is reasonable, potentially shortening what they consider a justifiable restriction period.