Hopefully, when an employee hands in their resignation, it won’t disrupt your workplace or have a negative influence on other members of staff. Sadly, this isn’t always the case, and your business might have to consider gardening leave.
But just how do you go about putting an employee on garden leave, particularly if this is not stipulated in their contract? The answer and detail is below. We’ve also included an example template letter for putting an employee on garden leave.
Can I put a member of staff on gardening leave? You can put an employee on garden leave if there is a gardening leave clause in their contract. However, if you place an employee on garden leave without this contractual clause you could leave yourself at risk of a breach of contract claim.
It’s important to have a clause relating to gardening leave in all employee contracts. By doing so, you won’t be open to any action. However, there is no legal requirement to put gardening leave clauses in work contracts, but it will help keep things clear should garden leave need to be used.
Sometimes it’s for the best that the employee who resigns isn’t around the office during their notice period. This might be for staff morale, to keep information secure, or even to keep the employee from learning too much about a new project before they leave.
Whatever the reason, it might well be the solution, but only providing you have it in the contract before you need to place an employee on garden leave.
What is gardening leave?
Gardening leave is usually given to an employee who has handed in their resignation and is taken in place of working their notice.
When an employee resigns, their contract will usually state that they will continue to need to work for you for a short amount of time before they finally leave their post. Gardening leave replaces this working time with what is essentially an additional holiday.
During gardening leave, your employees have the right to earn the same amount of pay as they normally would as well as any other contractual benefits and bonuses that they would otherwise be entitled to.
When is gardening leave taken?
Employees can be given gardening leave for a variety of reasons. Typically, it is because the employee is leaving your business to go and work for one of your competitors.
If the employee would be able to access confidential and sensitive information as a part of their job whilst working their notice, then you might place them on gardening leave to ensure confidentiality.
Additionally, if the employee could learn something private about your business that they could tell their new employers about, then it might be the strategic option to place them on gardening leave.
Gardening leave is also used to discourage the employee from persuading others in joining them with their resignation. This applies to both your other staff members, and your clients.
The terms of a gardening leave contract
When you place an employee on gardening leave, there are several factors that you might want to consider, including:
- Which employees they are allowed to communicate with.
- Which suppliers they are allowed to communicate with.
- What data they are allowed access to.
- Whether they need to take the remainder of their annual leave.
Additionally, you might want to consider allowing the employee to stay and train their replacement if both parties believe that it would be a preferable alternative to gardening leave.
Applying for jobs while on gardening leave
Any employee placed on gardening leave cannot start working for another company immediately. This is because they are still covered by their contract to you.
There is nothing stopping them from applying for jobs and going to interviews during the course of their gardening leave. The same rules that apply for your regular employees apply to those on gardening leave in this respect.
Can gardening leave harm my employee’s career chances?
The short answer is no. There will be no record of the employee being placed on gardening leave, and even if there was such a record – it’s not a bad thing.
Gardening leave provides your business with the peace of mind that your other employees and clients are safe while your employee makes their transition into their new role at another firm.
Simultaneously, the employee gets some additional time off work that they wouldn’t normally have received.
The risks of putting an employee on garden leave
The main downside to putting a member of staff on gardening leave is that your business still has obligations towards the employee, the main one of which is pay and entitlements.
If you don’t pay the employee or let them have access to any of their contractual entitlements, you could fall foul of an Employment Tribunal.
Plus, if the gardening leave clause in the employee contract has any error or ambiguity to it, and your employee did not agree the contract in writing, you could risk being exposed to a claim for breach of contract.
The advantages of putting an employee on garden leave
We already touched a little on the advantages to placing a member of staff on gardening leave, but here’s some more reasons to consider doing so.
What a member of staff cannot do during the garden leave period
- The employee cannot work for a competitor.
- The employee cannot set up a company in competition with you.
- The employee cannot solicit clients from your business.
- The employee must continue to abide to the employment contract.
- The employee must comply with reasonable / lawful instructions relating to work.
- The employee must not visit and enter the workplace.
- The employee must not use the employer’s confidential information and intellectual property.
- The employee must not use communicate with clients, customers, suppliers or other employees.
Template letter for putting an employee on garden leave
The letter below was created by www.hr-inform.co.uk.
Letter to confirm garden leave for employee on notice
Private and Confidential
[Insert name]
[Insert address]
[Insert date]
Dear [insert name],
I write further to our conversation on [insert date] when we discussed arrangements during your notice period.
As you know, we entered into agreement on [insert date] that you would be designated as a furloughed worker in order for the Company to obtain a grant to cover a portion of your wages from the Coronavirus Job Retention Scheme. The Scheme was set up to help businesses avoid making redundancies during the coronavirus pandemic by providing a wage grant during periods when there was a lack of work.
Because of the impact of the pandemic on our business, namely [insert details], we have been unable to provide you with work and therefore applied to join the Scheme to receive a grant to help us pay your wage in accordance with our agreement.
Despite the assistance we have received from the Scheme, we have unfortunately been unable to avoid making redundancies. We confirmed to you on [insert date] that your role with the Company has been made redundant and your notice period began on [insert date].
We had intended to continue to furlough you, and apply to the Scheme for the wage grant, until the termination of your employment on [insert date]. However, the Government has now changed the rules of the Scheme and removed employers’ ability to continue to claim the wage grant during notice periods. Because of this, we are no longer able to furlough you with effect from [insert date – either 1 December 2020 for notice periods which began before that date, or the date the notice period will begin if that is after 1 December 2020], because the new rules mean that we cannot receive a wage grant for this period.
During our discussion, I informed you that, due to the above circumstances, you will be placed on garden leave from [insert date] until the termination of your employment on [insert date]. For the avoidance of doubt, you will no longer be on furlough from [insert date].
During garden leave, you will not be required to undertake any work but you will remain employed by the Company until [insert termination date] and will receive full (pre-furlough) pay. In addition, the following will apply:
[insert rules to apply during garden leave].
[Optional] I would like to remind you that you have access to a confidential telephone counselling service if you would like to talk to a trained counsellor about any worries that you may be having about the impact of coronavirus, whether work related or not. You can access this by [insert details].
If you have any queries about the contents of this letter, please do not hesitate to contact me.
Yours sincerely
[Insert name]
[Insert job title]
Conclusion
To conclude, you can put an employee and member of staff on gardening leave, but it’s not recommended unless it was already a prior clause and agreement in their contract.
If you place an employee on gardening leave without it being a pre-agreed and contractual clause, it could result in a possible claim against you.
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Jon has been in business since 1999, and in that time worked with more than 300 small business clients. As well as being an accountant, he is also an early adopter of tech, and has helped small businesses to leverage the power of their computer systems by creating software to automate and simplify accounting tasks.
