While it is never possible to guarantee that there will be no legal challenges to a policy, there are steps you can take in order to reduce the likelihood of them and hopefully ensure that any such challenges are unsuccessful.
The starting point when writing a policy of this kind is to understand why you want it and what you hope to achieve by bringing it in. If you keep the intention in mind when drafting the policy it will help you to ensure that it is reasonable, proportionate and gives you what you want.
The principle behind gardening leave is that an employee who is in their notice period can be instructed to stay at home rather than come to work during that time. They are effectively being paid to spend time in their garden which is how it gets its name.
Employees are entitled to be paid as long as they are willing and able to work during their normal contractual time but are prevented from doing so by their employer. Unless the contract says otherwise there may not be an obligation on the employer to provide work. It is, however, worth considering expressly stating in the contract that there is no such obligation in general and particularly during any period of gardening leave to avoid any disputes later.
Many companies use gardening leave as a way of ensuring that any employee who is leaving to work for a competitor is not tempted to access sensitive company data to take with them, that any information they held becomes out of date and lets the company establish the employee’s replacement. It also prevents the employee from starting work with their new employer until the notice period has expired.
Any policy should set out that placing an employee on gardening leave is at the company’s discretion, it is not automatically going to happen. It should also clearly set out the obligations on employees during that period, namely that they must be available to respond to the employer’s instructions during their normal working hours. As such, if they want any time off for appointments or holiday this has to be requested and booked as normal.
The policy should also make it absolutely clear that employees remain bound by any restrictive covenants and are not able to carry out work for anyone else, including on a self-employed basis, while on a period of garden leave without your express permission.
It should expressly include a right to exclude the employee from the work place and prevent them from contacting clients, suppliers and agents. It should also spell out how any period of gardening leave will affect the calculation of, or entitlement to, any bonuses, commission and any other contractual benefits.
Finally, the policy should make it clear that any breach of the gardening leave policy could constitute a disciplinary matter. Depending on the severity of the breach this could result, if found, in disciplinary action up to and including dismissal for gross misconduct.
For any further information regarding gardening leave, please call our 24 Hour Advice Service on 0844 892 2772