When is Garden Leave used?

Garden leave happens when an employer continues to pay an employee who is leaving a company but forces them to stay away from work during their notice period. During this time the employee is usually forbidden to contact fellow employees, clients or suppliers and is denied access to company information.
The reason for such leave is to prevent the employee from working for a competitor for as long as possible.

Employers wishing to use such a process should ensure that there is a specific clause in the contract allowing duties to be varied, or withdrawn altogether, during the notice period. If the employee breaches a garden leave instruction the employer can take out an injunction against them and the tighter the contractual clause the more likely the courts are to enforce the position. Therefore for key employees, such as sales positions, it is important to consider, in advance, what might create a circumstance when you would want the employee to have limited access to the market.

Employers will need to weigh up the risk against the damage that may be done if the employee continues to work during their notice period, as opposed to the potential litigation if garden leave is breached.

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