Gardening leave, also referred to as garden leave, is a situation in which an employee who is leaving their position, either through resignation or dismissal, is required to stay away from the workplace during their notice period, whilst still remaining on the company’s payroll. During this time, the employee continues to receive their usual salary and contractual benefits, but they are generally prohibited from commencing employment elsewhere or contacting clients and colleagues. This strategy is often used by employers to protect business interests, such as safeguarding confidential information or preventing the influence of departing employees over ongoing operations or valuable clients.
At Stephensons, we understand that being placed on gardening leave can be confusing and, at times, unsettling. For employees, it raises many legal questions about your right to work, your financial entitlements, and the restrictions placed upon you. This page provides in-depth guidance about your rights when placed on gardening leave and how to navigate this unique employment situation lawfully and confidently.
What is gardening leave?
Gardening leave is typically imposed when an employee resigns or is dismissed, and the employer elects to exclude that individual from the workplace during their notice period. It can be used to prevent the employee from accessing sensitive information, influencing clients, or joining a competitor immediately. The employee remains employed and bound by their contractual obligations but is not actively working.
This form of leave is usually included in employment contracts under a specific gardening leave clause. However, even if not explicitly mentioned, employers may still attempt to impose it. Whether this is lawful or not depends on the terms of the individual contract and the surrounding circumstances.
Can an employer lawfully place you on gardening leave?
An employer can only lawfully place an employee on gardening leave if there is an express term in the employment contract permitting them to do so, or if the employee consents to it at the time of resignation or dismissal. If there is no express clause, attempts to place an employee on such leave without agreement could amount to a breach of contract.
Without a valid gardening leave clause, the employee may have a legal right to continue working during their notice period. If a business excludes them from work unjustifiably, the employee might claim constructive dismissal or seek damages for breach of contract. Therefore, it is essential for both employers and employees to fully understand the scope and enforceability of these clauses prior to termination or resignation.
What are your rights during gardening leave?
While on gardening leave, you continue to be employed by your current employer and are entitled to the same contractual benefits, including:
- Base salary or wages
- Pension contributions
- Private healthcare (where applicable)
- Accrual of holiday entitlement
- Company car or other contractual benefits
As an employee, you also remain bound by your contractual duties, including confidentiality obligations, any restrictive covenants, and the duty of good faith. It is important not to breach these restrictions, as doing so could result in disciplinary action, legal consequences or forfeiture of final entitlements.
Can you start another job during gardening leave?
Generally, you cannot start a new job while on gardening leave unless your current employer expressly permits it. Because you remain under contract during the leave, starting work for a competitor or another employer without consent could lead to legal repercussions, including breach of contract or injunctive relief.
However, in some cases, the terms of the garden leave may be negotiable. With the assistance of a qualified employment solicitor, you can seek to agree on a waiver or release from this restriction, particularly if the employer wishes to expedite your departure without ongoing financial commitment.
How long can gardening leave last?
The duration of gardening leave is commonly aligned with the length of the employee’s contractual notice period. This can range from a few weeks to several months and in senior roles, may extend up to twelve months. The length of the leave must be reasonable and proportionate; excessively long gardening leave periods could be challenged if they are deemed to be an unreasonable restraint on the employee’s ability to work.
Courts are generally reluctant to enforce unduly long periods of enforced idleness, particularly where it prevents an employee from earning a living or maintaining their professional skills. Advice should be sought if you believe the restrictions imposed are disproportionate or unnecessary.
What happens to restrictive covenants during gardening leave?
Post-termination restrictive covenants, such as non-compete clauses or non-solicitation restrictions, often apply following the end of employment. However, the period of gardening leave may impact how long these restrictions can lawfully apply.
For example, if a non-compete clause is designed to apply for six months post-termination, and the employee has already been on three months’ gardening leave, enforcement of a further six months’ restriction could be contested for being excessive. In some cases, employers may agree to reduce or waive specific covenants in consideration for the gardening leave already served.
Careful legal assessment is advised to determine whether post-employment restrictions are enforceable and reflect legitimate business interests. The courts will not uphold any restrictive covenant that is considered too wide or unreasonable in either scope or duration.
What if you refuse to comply with gardening leave?
If you are placed on garden leave under a valid contractual provision but refuse to comply with the terms, such as working for another employer or soliciting clients, this could amount to a breach of contract. In serious cases, your current employer may seek an injunction to prevent you breaching your duties. Additionally, there is the risk of disciplinary proceedings and the potential loss of final payments or references.
Conversely, if there is no contractual right to impose gardening leave, and an employee is unlawfully excluded from work, legal remedies may be available. This includes the right to bring a claim for breach of contract, constructive dismissal or financial compensation. Each case depends on its own facts and should be assessed by a specialist employment solicitor.
Can gardening leave be used as a disciplinary sanction?
Gardening leave is not intended to be a punitive measure and should not be used as a form of disciplinary sanction. It is a tool used principally to protect business interests. If an employer attempts to use it as a defacto disciplinary consequence without lawful basis, it may give rise to a claim of unfair dismissal or constructive dismissal.
Employees who believe they have been unfairly treated or wrongfully placed on garden leave in disciplinary contexts should seek legal advice without delay. There may be avenues to challenge the employer’s conduct and protect future employment opportunities.
How can Stephensons help?
At Stephensons, our employment law specialists have extensive experience advising individuals on all aspects of gardening leave and employee rights. Whether you are a senior executive navigating a complex exit or an employee concerned about your entitlements, we can help ensure your rights are fully protected. We assist with contract reviews, negotiating early releases, assessing restrictive covenants and resolving any disputes arising from your departure.
Understanding your rights and obligations during gardening leave is essential to safeguarding your career and reputation. With our expert support, you can make informed decisions and minimise legal risk. Our employment law solicitors work across a wide variety of sectors and can offer discreet, pragmatic advice tailored to your individual circumstances.
Final thoughts
Gardening leave is a contractual mechanism with significant legal implications for employees. Knowing your rights, responsibilities and options can help you handle this transition smoothly and lawfully. If in doubt, professional legal advice should always be sought.
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