Garden leave and the right to work
Garden leave and the right to work

The following Employment guidance note provides comprehensive and up to date legal information covering:

  • Garden leave and the right to work
  • The rationale for garden leave
  • Agreeing garden leave
  • No express garden leave clause
  • Enforcing an express garden leave clause
  • The right to work
  • The right to pay during garden leave
  • Effect of garden leave on post-termination restrictions
  • Enforcement of garden leave by the court
  • Drafting garden leave clauses

In broad terms, putting an employee on 'garden leave' means the employer sending the employee home on full pay during the employee's notice period. It can be done when an employee resigns or when he is dismissed with notice. The employee remains employed by the employer and, therefore, subject to the (express and implied) terms and conditions of his employment contract.

Express garden leave clauses are now often seen in contracts of employment, particularly those of senior employees. However, garden leave may also be imposed by the employer, even in the absence of an express garden leave clause in the contract, in certain circumstances.

The rationale for garden leave

Garden leave may be attractive to the employer in a number of situations:

  1. an employee gives notice of resignation and intends to join one of the employer's competitors (the employee may give the full contractual notice or purport to give short notice)

  2. the employee alleges that the employer has constructively dismissed him and that he is consequently entitled to leave immediately

  3. the employer may wish to give notice to the employee and for practical and/or employee relations reasons, does not require him to work his notice but does not wish to make a payment in lieu of notice (see Practice Note: Payment in lieu of notice (PILON))

In the first two situations noted