How to Handle an Employee Abusing Garden Leave
March 1, 2024 - Reading time: 10 minutes
Garden leave in the UK, also referred to as 'gardening leave,' is a period where an employee is instructed not to report to work after submitting their resignation. Despite their absence from the workplace, they continue to receive their standard salary until the end of their notice.
Understanding Garden Leave in the UK
During garden leave, an employer may request that an employee refrain from coming into the workplace and instead remain idle at home, while still receiving pay per their contract terms. This can be enforced at any stage of their employment but is typically utilised once the decision for employment termination has been made, akin to a paid suspension.
The central purpose of garden leave is to protect the employer's proprietary information and client relationships. Keeping the employee away from their work environment diminishes the value of any confidential data they have over time. It also gives the successor a chance to build rapport with clients without the predecessor's input.
While on garden leave, employers may require the employee to:
- Surrender all company assets, such as laptops, mobile phones, and documents
- Cease communications with customers, suppliers, contractors or colleagues
- Remain on-call to respond to inquiries or aid in the transition of their responsibilities
- Resign from any associated positions such as trustees or directorships that they hold within or on behalf of the company
Occasionally, rather than enforcing conventional garden leave, employers may allocate different tasks to the employee or position them in an alternate workplace. This keeps the employee productive without compromising the objective of garden leave.
Garden Leave Stipulations
Employees on garden leave are instructed not to enter the workplace or perform their standard work tasks and are typically restricted from joining another employer during this period. They are entitled to their full salary and may be required to return company property, such as their company car. This period is legally enforceable if the employment contract includes a garden leave clause.
This type of leave is a strategy employers exercise in order to shield their interests, especially in sectors like banking and finance where employees have access to sensitive information... It hinders employees from taking current company intel to competitors and prevents potential misconduct from those discontent with their departure.
Contract Violation: Exploiting Garden Leave
A garden leave policy is often put in place with valid justification. Nonetheless, there are instances where employees might exploit this paid leave agreement. Let’s review some of these scenarios.
Seeking Alternate Employment
A prevalent misuse of garden leave is securing another job while still being compensated by the original employer. In some cases, especially when the notice period scales with tenure, this could mean extending the employer’s financial obligation over several months. It is imperative for employers to monitor compliance with the contract terms.
Retention of Company Property
An employee expected to return items like phones, laptops, or vehicles might neglect to do so during garden leave. Failing to return these, when requested, constitutes theft. Recouping these possessions can be challenging, more so if the employee has grievances.
Neglecting Agreed Remote Work
Employees instructed to perform duties remotely during their notice period might wrongfully treat this time as a paid holiday. This non-compliance with contract stipulations can amount to 'time theft'. Recovering lost wages in such cases is complicated, as withholding pay is unlawful.
Understanding Rights During Garden Leave
Employees on garden leave continue to receive their salary even though they do not report to work during this period. It's akin to enjoying the peace of your own garden while remaining a team member. For this arrangement to be in effect, the employment contract must remain active. An employer can maintain the status quo according to the contractual terms if the employee wishes to terminate their employment earlier than agreed.
Throughout the garden leave duration, employers are required to honour their contractual obligations, including salary and agreed benefits. The employee, in turn, while not physically at the workplace, is expected to uphold their loyalty to the company, refraining from any actions that could potentially harm the business.
Normally, employers will provide the usual salary during garden leave on the condition that the employee is available for work if needed; legal consensus generally finds this arrangement fair. But, should the contract specify reduced pay during garden leave, legal enforcement becomes more complex and courts may be reluctant to uphold it.
Additionally, the employment contract can rule that any unused annual leave is considered taken during the garden leave period, clarifying entitlements and responsibilities during this time.
Employment Restrictions While on Garden Leave
While on garden leave, you remain an employee of your company but are not engaged in daily work activities or present in the workplace. It resembles a hiatus, yet you continue to be affiliated with your employer.
The primary obligation during garden leave is to refrain from active employment, including starting a new job or competing against your former employer. This period allows your company to transition smoothly without concerns of you divulging confidential information or immediately joining a competitor.
Therefore, it is typically not permissible to seek employment with another company during garden leave, as it conflicts with the prevailing terms of the leave.
Can Garden Leave be Declined?
Rejecting garden leave may not be straightforward if you intend to exit your role without serving the notice period stipulated in your contract. In such cases, an employer may enforce garden leave, under which you would stay on the payroll without actively working.
Should you object to garden leave, the employer retains the right to pursue legal action to ensure adherence to the leave clause, safeguarding the company from potential competitive threats or knowledge spill-over.
The legal system generally does not compel individuals to continue in roles against their wishes. The concept of garden leave emerged as a solution allowing employers to remunerate departing employees during their notice period, easing the legal burden without mandating work. As a result, it can be challenging to refuse garden leave when an employer deems it necessary for company protection, and a court may validate such a condition in favour of the employer.
Handling Garden Leave Misconduct
If an employer suspects misuse of garden leave by an employee, the situation can be difficult. Withholding salary as a punitive measure is legally complex, and termination is not an option since the employee is already leaving. Deciding whether to take legal action hinges on the potential risks.
Legal measures might be justified if the employee's behaviour during garden leave poses a significant risk to the company. Evaluating the gravity of the situation and consulting legal counsel is advised to determine the appropriate course of action.
Upon deciding to place your employee on garden leave, you've acknowledged that it's less risky to remove them from the work environment during their notice period than to keep them on-site. In the event that they breach the terms of their garden leave, resist the temptation to simply write off the loss. It's important to consider the potential future consequences.
Ignoring a breach could tarnish your company's image, risk the leaking of proprietary information, and possibly establish a negative example for the rest of your workforce. While absorbing the financial impact may be feasible once or twice, should this behaviour become recurrent, the cost could become unsustainable.
In situations where an employee on garden leave may be mishandling confidential company data, misusing assets, or otherwise violating the terms of their leave, you must obtain proof to recover their salary or claim damages. Employing a private investigator can provide strong, actionable evidence, helping you demonstrate contract violations in a legal setting. Our experienced team of investigators operate across the UK and beyond.
We offer free, no pressure quotes for all work. Tell us about your case and see how we can help.
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