What To Do When an Employee Abuses Garden Leave?

Gardening leave UK (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 garden leave notice period.

What is garden leave UK?

Garden leave is a practice where an employer asks an employee to stay away from work and remain at home without performing any work duties while still being paid as per their employment contract. This can happen at any time during the employment period, acting similarly to being on paid suspension. It is most commonly applied after an employee or employer has decided to part ways.

The main aim of Garden Leave is to safeguard the employer’s sensitive information and business relationships. Since the employee is kept away from the work environment, the relevance of any confidential information they possess decreases over time. This absence also allows the employee’s replacement to establish connections with clients without the former employee’s influence.

During garden leave, employers might ask the employee to:

  • Return all company belongings, such as laptops, mobile phones, and documents.
  • Avoid any communication with clients, suppliers, or fellow employees.
  • Be available to answer questions or assist with passing on their duties.
  • Step down from any roles like trusteeships or directorships they hold within or on behalf of the company.

In some cases, instead of traditional garden leave, an employer might assign the employee to special projects or work in a different location, maintaining the employee’s engagement without breaching the original intention of keeping them out of their usual work environment. This approach still aims to respect the employee’s notice period without directly enforcing a garden leave injunction.

Conditions Of Garden Leave

An employee on gardening leave is asked not to come to the office or usual workplace 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. The period is enforceable in employment law, provided the employment contract 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 jobs from engaging in sabotage or otherwise slacking off.

Breaching Contract: Abusing Garden Leave

If your company enforces a garden leave policy, it is 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 have worked for the company, you might find that you’re paying it for several months. If you have agreed to shoulder this financial burden, you must ensure they uphold their side of the contract.

Failing to Hand Over Company Property

If you have provided your employees 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 are asked to, this is theft. Recovering these items might be difficult without help, especially if your employee is particularly dissatisfied.

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.

What are the Employees' and Employers' Rights During Garden Leave?

Employees on garden leave are in a special stage where they still get paid but don’t come to work. It is like being in the garden but still part of the team. This setup needs the work contract to be alive and kicking. If an employee wants to leave the job sooner than agreed, the boss can decide to stick to the original plan and keep things going as per the contract.

During garden leave, the employer must keep up their side of the deal, which means paying the salary and any other perks that were promised. The employee, even though they are not at work, should still be a good team player from afar, not doing anything that could hurt the company.

The boss usually agrees to pay the normal salary during this time. But, they only need to do this if the employee is ready to work if asked; courts agree that this is fair. However, if the contract states the salary will be less during garden leave, it can become complicated, making a judge hesitant to agree to enforce garden leave.

Also the contract can also state that any holiday time not taken counts as taken during garden leave. This helps keep everything clear about what’s owed and what’s not during this quiet period.

Can you work for another company while on garden leave?

When you are on garden leave, you are still part of your old company’s team, even though you are not showing up at the office or doing your usual work. Think of it like being on a break where you are still connected to your team.

Your main job during garden leave is to stay away from work but also not to start working for someone else or compete against your old company. This time is meant for you to take a step back while still being under your current contract. It gives your old company some space to adjust without worrying about you sharing secrets or jumping straight into work with a competitor.

So, the short answer is no, you shouldn’t work for another company while on garden leave as that would be against the garden leave rules. This period is like a pause, where you are still tied to your old job.

Can you refuse garden leave?

If you try to leave your job quickly, skipping the notice period in your contract, your boss might not agree to let you go so fast. Instead, they could ask you to stay away from work but still pay you during this time, which is called garden leave. This means you are still part of the company but not working or going to the office.

If you don’t want to be on garden leave and refuse it, your boss has the right to take things to court to make sure you stick to the garden leave. This helps protect the company from any harm you might do by joining a competitor or sharing secrets.

The courts usually don’t force people to work where they don’t want to. There are some laws about this issue to make sure people are treated fairly. The idea of garden leave started because bosses would still pay workers after they said they wanted to leave to make it easier for courts to keep them in their notice period without forcing them to work.
So, saying no to garden leave isn’t easy. If your boss insists on it to keep the company safe, the court might agree with it and pass the judgement against you.

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.

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