Gardening leave (also called ‘garden leave’) is when an employee is asked to stop attending work after handing in their notice. They still continue to receive full pay throughout their notice period.
Conditions of Garden Leave
An employee on gardening leave is asked not to return to work and is normally contractually forbidden to work for another company. While they continue to receive full pay, they might have to hand back workplace property, like their company car. In employment law, the period is enforceable, provided the contract of employment contains a garden leave clause explaining that they might be subject to this.
Employers use this type of leave to protect their interests, particularly in the banking and finance industries. This is because their employees are often privy to sensitive information. Garden leave prevents them from taking up-to-date details of company operations to their competitors. It also prevents employees who might be disgruntled about leaving their job from engaging in sabotage or otherwise slacking off
Breaching Contract: Abusing Garden Leave
If your company enforces a policy of garden leave, it’s usually for a good reason. Unfortunately, signing a contract won’t stop some employees from abusing this period of paid leave. Let’s have a look at some of the ways that this might happen.
Taking on Employment Elsewhere
The most common abuse of garden leave is taking on other work while still on your payroll. If, for example, your employee’s notice period is proportional to the number of years they’ve worked for the company, you might find that you’re paying it for several months. If you’ve agreed to shoulder this financial burden, it’s crucial that you ensure that they uphold their side of the contract.
Failing to Hand Over Company Property
If you’ve provided your employee with a phone, laptop, or vehicle, they probably won’t need it on garden leave. If they don’t hand these items back when they’re asked to, this is theft. Recovering these items might be difficult without help, especially if your employee is particularly disaffected.
Failing to Carry Out Remote Work
If you’ve asked your employee to work remotely during their notice period, they might take it upon themselves to take a paid holiday instead. If the conditions outlined in their contract explicitly state that they are to work remotely, they are guilty of time theft. It can be difficult to recoup this money, as withholding wages is illegal.
My Employee Is Abusing Their Garden Leave: What Do I Do?
If you think your employee has failed to do what you’ve asked, your options might feel limited. It’s challenging to withhold wages legally, and the possibility of dismissal doesn’t apply as a deterrent. Whether or not it’s worth your while to take legal action against your employee depends on the risks involved.
By placing your employee on garden leave in the first place, you’ve already accepted that, for whatever reason, keeping this person in the workplace during their notice period isn’t worth the risk. If they’ve subsequently failed to uphold their side of the arrangement, it can be tempting to give up and eat the loss, but before you do this, you should consider what future damage could come with it.
The loss could damage your company’s reputation, the employee could sell valuable information, and it might set a bad precedent for your remaining employees. Yes, you can afford to take the financial hit once or twice, but what if it becomes a pattern with your employees? You probably can’t afford to dish out thousands of pounds for absolutely nothing every time someone leaves your company.
If your employee is using sensitive information, abusing your company’s property, or otherwise failing to meet the conditions of their garden leave, you’ll have to prove it to recoup their wages and any damages. A private investigator can gather high-quality, usable evidence that you can use in court to prove that there was a breach of contract.
Private Investigations UK offers employee surveillance and background check investigations to businesses and individuals. For free, professional advice, feel free to give us a call on 0800 002 0898 or get in touch another way.