What is Garden Leave? (or Should that be Gardening Leave?)

You have probably heard of the term “garden leave”, but what exactly does it mean? And is it the same thing as “gardening leave”?

Garden leave is basically a device which an employer can use to help protect itself against possible mischief by an employee during his notice period when the employee has resigned or been dismissed.

The employee must stay away from work during the whole or part of his notice period but continues to be employed and to receive pay and benefits.

While a person is on garden leave he is usually forbidden to contact any of his employer’s customers or fellow employees. Suppliers are sometimes off limits as well. People on garden leave are normally denied access to their employer’s computer system and are often required to return their company car, laptop, smartphone, etc. They are, however, expected to be available to provide their employer with information and support as and when it is required.

Whilst on garden leave, an employee must observe the implied duty of fidelity in his employment contract as well as any express restrictions in the contract on competing or doing a second job whilst an employee. In practice, he will probably not be allowed to work for himself or anyone else whilst on garden leave.

You will be relieved to hear that gardening leave is exactly the same as garden leave.

The pithiest explanation I have been able to find for the derivation of the two terms is taken from the English Language Usage & Stack Exchange website:

“In its upper middle class origin, “garden leave” means you don’t want someone in the house (ie, doing stuff or knowing what’s going on), so you send them into the garden (upper middle class houses always have gardens right?)The concept was too abstract for the general population, so it mutated to “gardening leave”, which means all an employee is good for is to stay home and tend to his or her garden, or gardening.”

Employment lawyers still call it “garden leave” but many people (including some at the BBC) prefer “gardening leave”. However, as an employment lawyer, I am going to stick with “garden leave”.

A quick point for the purists

Strictly speaking, a person can only be placed on garden leave once he has resigned with notice or been dismissed with notice. If an employee is required is stay away from work at any other time during his employment then it will usually be a suspension of some sort unless there is genuinely no work for him to do.

So when and why is garden leave used by employers?

There are various reasons why an employer may decide to put an outgoing employee on garden leave. The person might, for example, be seen as disruptive or likely to have some other negative impact on his fellow employees or on the company’s customers if he worked his notice period. He might also help himself to the company’s confidential information and take it with him to a competitor.

However, most businesses prefer in that type of situation to bring their employee’s employment to a swift end by giving him a payment in lieu of notice.

Garden leave is most commonly used when the business has a positive reason for wanting to keep the person employed during his notice period – but not at his normal place of work. If, for example, the employee is on 3 months’ notice and is a successful salesman who has close personal relationships with his company’s top customers, it would make sense to try to keep him away from those customers during that period. The company can then use that period to introduce a new salesman to those customers in an effort to retain their loyalty, given the risk that the outgoing salesman will join a competitor and then do his utmost to persuade his old customers to jump ship.

Employers often use garden leave if they are worried the post-termination restrictions in their employees’ employment contracts – on competing or on soliciting customers, for example – might be unenforceable.

Must the employer have the contractual right to put someone on garden leave?

At one time it was thought the answer was no. It was generally assumed employees had no ‘right to work’ and that, provided they continued to receive their full pay and benefits, their employer could at any time during their period of employment – including their notice period – require them to stay away from work without being in breach of contract. This was the case even if the employer had no express contractual right to do it.

In recent years, however, the Courts have become increasingly willing to imply an employee’s ‘right to work’ into employment contracts. This means that nowadays an employer who sends his employee home and gives him no work to perform is at risk of being in breach of contract even if the employee is still on full pay and benefits. The practical consequence of this change of approach is that the vast majority of employment contracts these days give the employer the express right to place the employee on garden leave for the whole or part of his notice period if he resigns or is dismissed.

Do you need legal advice on garden leave?

Perhaps you have an employee who you are about to dismiss and you are thinking about putting him on garden leave and want to know the right way to do it. Or maybe you are an employee who has just been put on garden leave and you wish to know where you stand.

Legal advice

For advice, please contact a member of the team on 03456 381381 or email employment@ibblaw.co.uk.