Whilst with most resignations, the person works out their notice period, hopefully tying off essential work, doing a useful handover and leaving with a cheery smile and a good relationship, this isn’t always possible.

Sometimes, whether you’ve terminated the individual’s employment or they’ve opted to resign themselves, you need them to not be around during their notice period.

If this is the case, one option is to place the employee on garden leave. Garden leave is where someone is still employed for the duration of their notice as normal, but are required to stay at home (hence garden leave, the idea being that they can do some gardening!) and not attend work. They are usually required to be available if necessary and remain under contract with you, i.e. not able to take up new employment during that time. Garden leave can be useful if you may still need someone to answer various queries, or perhaps complete pieces of work at home, or wish to delay the length of time before someone can take up new employment.

Here are some things to bear in mind when considering placing someone on garden leave:

Entitlement to benefits

During garden leave someone will continue to accrue holiday and be entitled to normal salary and benefits. You need to ensure things like private health insurance or similar continue until employment has actually ended.

If someone has a company car, phone or laptop, whether you need to continue providing these will depend on whether they are a benefit, or a tool of employment, and whether you may require the employee to do anything work-related while they are at home. Anything the employee has for personal use (as well as business use) will need to remain in place, so if they can use their company car for private journeys, they’ll need to keep it.

Employees also continue to accrue holiday during garden leave, even though they are not attending work. You may be able to require them to take holiday during their notice period, but remember when calculating it that you need to include holiday accrued to their actual termination date.

Contractual issues

You don’t necessarily need a contract clause entitling you to place an employee on garden leave in order to do so. They are still being paid so on the face of it are not losing anything financially. But there have been situations where doing so has been or may be considered a breach of contract. One example would be a role where part of the employee’s remuneration is dependent on their work, such as commission or bonuses. By forcing them to remain at home you are denying them access to such payments.

So a contract clause is a good idea. It avoids any breach of contract claim and also provides clarity for both parties on what garden leave will mean and what you as the employer are entitled to do in these circumstances. You may want to include a requirement to hand over company property such as laptops or mobile phones, a requirement to stay away from the office and to not contact colleagues or similar, depending on the circumstances.

Communication

Before starting the garden leave, you will need to decide what information to give other staff and clients and customers about your employee who is leaving. When someone effectively suddenly disappears from the workplace you need to ensure people have an explanation to avoid gossip and speculation. If the departure is not particularly amicable, you may find the employee will try to communicate with others about the circumstances and getting your position across would be sensible.

Depending on the role, there is also the risk that the departing employee may seek to take clients or employees with them to their new employment. Hopefully you will also have suitable contractual protection against this happening, but managing garden leave sensitively and effectively will help prevent this type of thing. As far as clients are concerned, notifying them of the departure in simple terms, advising them of contact details for future requirements and reassuring them as to continuity of service would be appropriate.

Handover

Obviously if someone is staying in work during their notice period, you have a chance to organise handing over of their work, either to a remaining employee or even to a replacement new recruit. But if someone is going on garden leave straightaway that opportunity is not there.

If you can ensure at least a very brief handover before the employee leaves the workplace, that would be sensible. You are in a position to require the employee to perform work duties during their garden leave, so you could consider requiring them to come in at a designated time to conduct a handover if doing it before they go is not possible. Depending on the role, continuing to allow them access to work laptops and emails for handover queries might be worth considering, however if there is any business risk regarding them retaining access to commercially sensitive information you should avoid doing this.

Clarity of expectations

Even if you have a contract clause about garden leave, it is still essential you set out clearly in a letter to your employee exactly what it entails. You need to be clear what you expect from them, what restrictions you are placing on their activities during the period, what arrangements there are for handing over items like laptops and phones, and reminding them that they remain employed during this period and all their contractual responsibilities and obligations remain in place.

 

If you need advice on garden leave, do get in touch.