Garden leave and the right to work

The following Employment practice 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
  • Keeping the contract alive
  • Exercising the discretion
  • The implied term of trust and confidence
  • Clear exercise of right
  • Effect of garden leave on the contract of employment
  • More...

Garden leave and the right to work

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 the employee is dismissed with notice. The employee remains employed by the employer and, therefore, subject to the (express and implied) terms and conditions of their 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 them, and that they are 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 them to work their 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

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