What is garden leave?
Generally, the time when you should be working out your notice, that your employer makes you stay away from work, at home, in the garden but continues to pay you.
Sometimes it's good to have a rest (gardening!) but on other occasions you may want to go and start the new role or keep up your skills.
Must there be a contractual term?
No. However, the employer can face problems if it does so, for example, you could be prevented from earning commission or a bonus which you would have received had you been working or you could be prevented you from using your skills. Putting you on garden leave without a contractual term can be a very serious breach of contract, so serious that it entitles you to accept the breach and leave as a result.
You may not to be bound by any restrictive covenants in your employment contract and be able to claim unfair constructive dismissal or breach of contract, depending on the circumstances.
Garden leave clauses
Usually, employers include a contractual provision, entitling them to put people on garden leave and setting out the terms which are going to apply if they exercise their rights to do so.
Some clauses are better than others and often the extent of the provision has to be considered carefully, since a clause will only be enforceable if it is reasonable, the rules are similar to those relating to restrictive covenants.
Also, if there is a long time on garden leave, followed by restrictive covenants, the length of both together may render the restrictive covenants unenforceable.
Contact Roberta for more information.