Dean Wilson LLP answers questions on Employment Law.
This week: Garden Leave
Q. I have recently been given notice to terminate my employment but have been told that I am not required to come in to work for the whole of the notice period, which is six months, and that I am therefore on garden leave. As I understand it, this means that I am still employed and therefore the restrictive covenant that says that I cannot work for any competitor for six months starts to run when my garden leave has ended. In effect that means therefore that I really cannot work for twelve months in total. Is that right and is it fair?
A. There is much confusion about the meaning of the expression “garden leave” (sometimes wrongly called “gardening leave”). The proper meaning of this expression is that it is a period during which you are serving out your notice at home, i.e. you are not required or permitted to do any work during that period. There may well be a clause in your Contract of Employment that provides for your position with regard to the restrictive covenant. Typical clauses will say that the period of garden leave will count towards the period of the restriction so that if the garden leave period was, for example, three months and the restrictive covenant was for six months, it would effectively be reduced to three months from the end of your notice period or garden leave period.
Q. During my garden leave period they have asked me to come in to do bits and pieces of work as required. Does this affect the position?
A. Yes it does. It has recently been decided by the High Court that if you are required to come into work, albeit only sporadically, you are not on garden leave and that this period therefore does not count towards the time for the restrictive covenant. It might be unwise to refuse to do any work for the employer during this period because that would amount to a breach of contract on your part and may justify your dismissal without any notice. My only advice in this situation would be that you ought to bring this dilemma to the attention of your employer and try to agree in writing with your employer that the so-called garden leave period should count towards the time under your restrictive covenant.
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Ian Wilson is senior partner of 13 partner Brighton solicitors Dean Wilson LLP and specialises in employment law. He was a part-time chairman of the Employment Tribunals for nine years. He is also a board member of The Martlet’s Hospice.
