Garden Leave is a term banded around with nonchalance. Most people assume that employers can automatically continue to pay you, but keep you at home, preventing you from working for the competition.

Without an express written term in the contract, it is not quite that simple. Although a recent judgement has held that in some very limited circumstances it may now be possible, it is best practice to have such a clause within the contract, and you should make sure that it prevents working for anyone else during that 'leave'.

Typically garden leave is written into the clauses that deal with termination of employment and usually only for senior staff. We would advise that you take such wording away from the period of notice to allow for its imposition in circumstances other than resignation and dismissal.

It is probably wise not to specify on which other occasions it may be used, but such circumstances might include:

It is discovered that a manager is talking to the competition but has not resigned. There is no misconduct but you want them out of the way for a while.

An employee has been off long-term sick. They want to return to work, but you are not convinced it is safe to do so and you wish to obtain an independent medical opinion.

A company is consulting with staff in critical and commercially sensitive areas about redundancy. They wish to do so without having any of them in work.

Garden Leave is not quite the same as Suspension with Pay, as that is rightly associated with suspected wrongdoing and tends to be quite emotive. But beware, putting someone on garden leave is never easy - just because you have contractual authority to do so, it is not a step to be undertaken lightly.

A final note - full salary and benefits must be paid throughout the period of garden leave. Failure to do so will amount to breach of contract by the employer so that both the garden leave obligation and any restrictive covenants will be unenforceable.

Key points;


• Include well drafted garden leave clauses in contracts
  
• Do not limit yourself to just termination/dismissal
  
• Specifically prevent working for anyone else
  
• Decide when it is appropriate to put someone on garden leave
  
• Treat them properly so there is no breach of contract