The ins and outs of Garden Leave: what HR should know

Senior employment solicitor Nia Pawley examines all you need to know about garden leave in an article first published by HR Magazine on 14 December.

With the high profile early departures of senior members of Government who had been scheduled to work to the end of 2020, Nia Pawley, Senior Solicitor in our Employment law team considers the concept of garden leave, what purpose it serves, who it may be appropriate for, and its interplay with other parts of the employment contract, such as restrictive covenants and, most recently, furlough.

With furlough set to continue until March 2021, this could be a question that remains relevant for some time to come.

UPDATE: Please note that since this article was first written, the furlough scheme has been extended to 30 April 2021.

Why is garden leave necessary?

From an employer’s point of view, a clause in an employment contract allowing the employer to put an employee with a certain level of influence or access to information on garden leave is most necessary and useful.

Effect on other parts of the employment contract

Garden leave is often used with restrictive covenants to protect an employer’s goodwill, confidential information, business connections and the stability of its workforce.

Without a garden leave clause, employers could be in breach of contract in keeping the employee away from work, losing the protection of restrictive covenant clauses to prevent or restrict the employee from having any undue advantage with a competitor.

Furlough

One question that will become increasingly relevant is whether restrictive covenants are affected if an employee has been placed on furlough instead of garden leave. If an individual is placed on furlough, their access to customers, clients and colleagues could be restricted for that period, as fully furloughed individuals should not be carrying out any work (but may still have access to work systems).

Read the full article on garden leave here.

This article is part of the Employment Law Newsletter – Winter 2021