In the past, it has been hard to impose gardening leave if there is not an express clause set out in an employee's contract. However, a recent High Court decision may have changed this position, making it easier for employers to impose gardening leave.

 

Gardening - or garden - leave is the legal term for a period where an employee is given their notice but continues to receive a normal salary and is ordered to serve out a period of notice at home – or "in the garden".

 

It can help to ensure that an employee working their notice stays away from the workplace, colleagues, and is unable to contact clients and suppliers, thus preventing them from taking any important information, clients or co-workers from your company to their new employer.

 

Until now the legal position has always been that if you wish to put an employee on gardening leave then there must be an express clause in the employment contract that provides for this, otherwise you would need to seek the employee's consent.

 

However, in the recent case of SG&R Valuation Service v Boudrais, where two directors resigned with the intention of joining a competitor and there was strong evidence that they intended to steal confidential information, their employer sought an injunction to put them on gardening leave despite there being no contractual clause. The employees argued that their employer was in breach of contract.

 

The court held that the implied right of the employee to be provided with work must be qualified and that the employees must not have as a result of a prior breach of contract or duty made it "impossible or reasonably impracticable for the employer to provide work". As there was proof that the directors had breached their contract and duty, the injunction was granted.

 

In this instance, the employer was able to show wrongdoing on behalf of their employees but this may not always be the case. Therefore it is considered best practice to have a clause within the contract and always take professional advice before putting an employee on gardening leave.

 

In addition, you may wish to look at your terms and conditions to see if the addition of restrictive covenants may be beneficial. It may be possible to seek to protect the business through non-competition and non-poaching clauses.

 

 

 

This article was written by Helena Beare, legal consultant at Qdos Consulting, who provide the FPB's 24-hour legal helpline. Click here to find out more about our legal expenses insurance package available to members of the FPB.

 

This article does not constitute legal advice. If you require legal advice regarding gardening leave, please speak to a qualified legal professional. More information on employment law, including gardening leave, can be found in our Employment Guide.