What is Gardening Leave in England and Wales?

As an employer, you will naturally want to protect your business and its interests. Whilst your staff typically assist you in doing this, there may be times when you feel that your employees could threaten your business interests. This could be when they leave their employment with you and decide to work for a competitor or themselves. When this occurs, you may be able to place your employees on gardening leave to protect your business. However, if you do this, you must be aware that there are rules which you should note.  

This article will explain gardening leave and why you might require your employees to take it. It will also explain the associated rules for both you and your employees.

What Does Gardening Leave Mean?

Gardening leave is a form of a restrictive covenant within an employment contract. It is a clause that seeks to restrict your employees’ actions when they leave your business. Likewise, it is common to offer gardening leave to senior employees. 

There are times when you may give your employees notice to terminate their employment contract. Likewise, during their notice period, you might ask them to not work for you at all, or to do any of the following:

• not come to their regular place of work;
• carry out limited duties;
• to work from home; or
• work from a different location.

Gardening leave can vary in length as it is dependent on the notice period you require your employees to give. Importantly, the employment contract should specify these details. However, suppose the notice period for your employee is six months or longer, and you request they take the whole period as gardening leave. In that case, a court could decide that this is unreasonable to protect your business interests.

When Might an Employer Offer Gardening Leave?

You may choose to offer garden leave to your employee where you need to, and your employee’s employment contract states that you can do so. 

For example, you might offer garden leave where you want to keep confidential or sensitive information away from your employee to prevent them from using it in their next job. Garden leave allows you to control your employee from accessing your property, such as:

• the actual place of work;
• your workplace systems; or 
• any intellectual or tangible property. 

The employee’s employment contract would generally state what the employee can and cannot do.

What Rules Are Associated With Gardening Leave?

To request that your employee take gardening leave, they do not already have to have a job secured when they leave your business. You can ask them to take it where your employee resigns or where you choose to dismiss them, including through redundancy.

Additionally, gardening leave will typically:

• begin on the day your employee hands in their notice;
• allow you to request that your employee finish off their current activity or produce a document for handover, but otherwise, they do not carry out any employment activities;
• prevent the employee from being able to contact your clients and colleagues;
• place your employee on standby if you find you need their help during working hours; and 
• prevent them from working in a new job before the notice period ends.

Despite your employee not necessarily working during garden leave, they are still employed by you. So, they will still have to abide by the terms of their employment contract, such as non-competition terms. 

However, as they remain your employee, they may also enjoy some employment rights. When your employee is on garden leave, they should enjoy the same pay and contractual rights as they usually do. For example, they still have entitlements to:

• any private health insurance they typically receive;
• accrue holiday, where whatever is outstanding can be paid when they leave. Alternatively, you can ask them to take it during gardening leave, provided you give them enough notice to book it and it is not longer than the notice period; and
• gain or accrue a bonus depending on the terms of their employment contract.

Key Takeaways

Gardening leave is a type of leave that you may require your employees to take during their notice period for leaving your employment. It can help protect your business interests if they decide to work for a competitor business or themselves. You may decide that your employee cannot work at all and should not access any of your business property, such as your computer system. Alternatively, you may decide that your employee simply needs to work from a different location. Regardless of what you decide, there are rules associated with gardening leave which you should be aware of before requesting it. For example, you can only request it if your employee’s employment contract allows for it. 

If you need help understanding gardening leave in England and Wales, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 0808 196 8584 or visit our membership page.

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