| Commentary

(4) 'Garden leave'

| Commentary

(4)     'Garden leave'

'Garden leave' refers to the concept of the employee (normally following service of notice by either party) being relieved of the obligation to perform work but otherwise being subject to the obligations of the contract arising expressly and by implication. These obligations may include not competing with or working for a competitor of the employer and the duty of fidelity. The employee will be paid during the garden leave period. Indeed, in Imam-Sadeque v Bluebay Assset Management (Services) Ltd [2013] IRLR 345, Popplewell J said (at [144]) that 'The employer is paying for the continued right to insist on the employee performing his negative obligations.'

An employer may be attracted by the option of placing the employee upon garden leave where they are a risk to the business, but the employer has no grounds upon which to summarily end the contact and/or has no express contractual right to make a payment in lieu of notice. This will be of benefit to the employer where there is an express right to place an employee on garden leave and the employer has the benefit of covenants restricting competition. This way the employer will not be in breach of contract and can hold the employee to their obligations.

Generally, an employee has no right to work but merely a right to be paid for the work performed. As it was memorably put by Asquith LJ in Collier v Sunday Referee Publishing Co Ltd [1940] 2 KB 647 at 650, 'It

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