When can I put my employees on garden leave?

Wonder when you can put your employees on garden leave? Or even what garden leave is? Whether it’s something you’ve encountered before or not, it’s important to know the basics in case you ever face the situation.

So, when would you use garden leave?

Typically, garden leave is possible if it’s in the employee’s contract, though it can be agreed by you as the employer and the employee during their notice period after a resignation or dismissal.
Here’s what you need to know about it.

What is garden leave?  

Garden leave is an arrangement where employees stay employed and on full pay without actively working. They’re still bound by their usual obligations, like not competing against their employer, but they’re not actively doing their job. It’s called this because the idea is, instead of heading to work, an employee on garden leave might spend their day in the ‘garden’.

A well-drafted garden leave clause will highlight that the employer can request the employee to not attend the workplace unless explicitly directed otherwise.

How garden leave benefits employers 

Garden leave can be good for employers for a few reasons, as during this time it can help:

• Protect against competition: Garden leave helps make sure employees don’t work for competitors or lure clients away. This arrangement is especially beneficial if an employee plans to join a rival company.
• Prevent poaching: As the employee is still tied to their original employer, they can’t encourage other employees to join competing firms.
• Provide flexibility during handover: Employers can call upon the employee, if needed and appropriate, to ensure a smooth transition – like answering questions or providing training.
• Protect data: Employees must continue to respect data protection rules, so that can help make sure sensitive company data remains confidential.
• Provide contractual benefits: Garden leave means an employee is still bound by their contractual terms, which helps to protect your business until they leave. Hopefully, they’ll also be subject to restrictive covenants that limit what they can do once their employment has ended, but it’s easier to control and/or enforce against the employee during garden leave as they’re still employed and so subject to more obligations.

• Avoid conflict: If there is any potential source of  gardening leaveconflict with an employee that has led to their resignation or dismissal, it could be good to get them out of the workplace until their last day of employment.

Using gardening leave appropriately

 

• You still need to uphold your side of the deal: Garden leave isn’t just about the employee and their contractual obligations – as an employer, you still need to stick to all your usual obligations to the employee as well. For example, paying them on time, not discriminating, and remaining professional.
• It should protect legitimate interests only: Garden leave needs to protect your legitimate interests – like your client base or other employees.
• Keep it in line with contractual clauses: Garden leave should be used in line with the contractual clause. If the contract doesn’t have a garden leave clause, then the parties can agree a garden leave clause, but this should be clearly evidenced. Otherwise, it could be a breach of contract, and this then releases the employee from any restrictive covenants once they’ve left.

Can an employee request to be put on garden leave?

Yes, employees can request garden leave if their contract permits. However, the final say typically rests with the employer.

How long garden leave should last

Garden leave typically spans the employee’s notice period. In case of disputes, courts evaluate whether the garden leave length is appropriate to protect legitimate business interests like client relationships.

Are there any drawbacks to garden leave for me as an employer?

While garden leave offers benefits, it does come with costs.

You’ll have to continue to pay the employee, which can strain resources if the employee isn’t contributing actively.

If you don’t want the employee in work, then a cheaper option would be to pay them in lieu of notice (if allowed by their contractual terms). This will, for example, stop them accruing holiday during their notice period.

However, the employee is then no longer employed and could, for example, start another job immediately. So it depends on whether the expense is worth it to have the employee out of action but still employed for their notice period.

Are there any other considerations I need to make?

The only other thing to keep in mind is that an employee can’t refuse garden leave if it’s in their contract, but if it’s not, then you won’t be able to enforce it. So it’s important to make sure your contracts are fit for purpose.

Cover all bases with our tailored HR & Employment Law services

Getting your contracts and terms and conditions right is tricky – which is why we do it for you. Our all-in-one HR & Employment Law package will sort all your HR documentation for you, give you access to 24/7 advice, let you store all your documentation and manage your people online in Atlas, and give you tribunal support (should you need it!). Whatever your business, our expert HR consultants are ready to guide you through every step.

For more on garden leave and how to manage it effectively, check out our in-depth garden leave policy advice. And if you’d like to find out more about how we can help, contact us today!