An employment contract question
Discussion
How enforceable is 'gardening leave' if someone is in their notice period?
Can a company actually prevent someone starting a new job if they are on gardening leave?
If the person starts the job anyway, can there be any repercussions beyond refusal to pay for the notice period?
Thanks in advance
Can a company actually prevent someone starting a new job if they are on gardening leave?
If the person starts the job anyway, can there be any repercussions beyond refusal to pay for the notice period?
Thanks in advance
I would have thought it reasonably enforceable with the right contract terms. Gardening leave in my (limited, and IANAL understanding) is a gentleman's agreement that while you sit twiddling your thumbs, the old company pays you. I would have thought if they got wind of you actually working for someone else, gardening leave could quite easily be turned into sitting in a spare corner of the office twiddling thumbs leave.
At that point, my actual knowledge ends 
I'd suggest the employer has the contract reviewed for enforceability, and if the professional advice comes back that it is actionable, they sue to enforce the terms.
If the employee's destination is known, and there's a social link to the new company, perhaps a swift half bought for the MD in the golf club?
I'd suggest the employer has the contract reviewed for enforceability, and if the professional advice comes back that it is actionable, they sue to enforce the terms.
If the employee's destination is known, and there's a social link to the new company, perhaps a swift half bought for the MD in the golf club?
It'll depend what's in your contract. I would have thought you're still employed and still subject to your contract. Often being put on gardening leave (or recalled from it) is at the discretion of the employer.
Working for another employer during your employment with your current one might be a breach of your contract.
What your current employers would choose to do about it is anyone's guess.
Working for another employer during your employment with your current one might be a breach of your contract.
What your current employers would choose to do about it is anyone's guess.
janesmith1950 said:
Just to add, if you were in breach they could potentially injunct you and your new employer from working together whilst the contract is in force and hold one or both of you to account for any damages your breach caused them.
I think this is the crux of what I am getting at:If someone is on gardening leave then they are of no use therefore there cannot be any damages suffered - can there?
(obviously I am not talking about the crossover with them breaching non-compete clauses- it isn't relevant here)
Your still actually employed by the old employer, and in breach of contract (employment contract that you signed/agreed to at the start of said contract).
The old employer could sue you for breach which could cost you more than the money gained in starting a new role early. The new employer would also be subject to liable should previous employer want to seek compensation.
Its usually a competiton thing when garden leave is given, where two companies are simular on what they do or the market they trade in - so advise would be to sit tight, enjoy your garden or the pub garden and wait for the clock to tick.
The old employer could sue you for breach which could cost you more than the money gained in starting a new role early. The new employer would also be subject to liable should previous employer want to seek compensation.
Its usually a competiton thing when garden leave is given, where two companies are simular on what they do or the market they trade in - so advise would be to sit tight, enjoy your garden or the pub garden and wait for the clock to tick.
As has been said already, it entirely depends on exactly what is in your contract.
I have been on "gardening leave" a couple of times, the specifics behind each was slightly different due to the differing contracts.
Once was simply my notice period. I had a 3 month notice period, thus could not legally work for anyone else for 3 months after handing in my notice, though my employer did not want me to attend the office during those 3 months. Of course they COULD have insisted I come to the office, but it wasn't in their interest to just waste my time (or their own).
Another time I had a 1 month notice period, and then a clause in my contract that gave the employer the option to pay me an additional 2 months salary, to stop me working for any competitor (very loosely defined) for an additional 2 months.
Of course the end result was the same, I had 3 months off paid, during which I did not work, but the structure of the contracts was very different. In the first instance they could have asked me to attend the office at any time, and it would be been a breach of contract for me to refuse. In the second instance, they did not have to exercise their option over the 2 month period (in which case I could have started my new job after 1 month), but after deciding to exercise it, all it did was mean I could not work for a competitor, they had no right to request that I attend the office.
"Gardening leave" as such is not a legal term, it's just the colloquial way of saying "I'm still being paid an ex-employer but not having to work for them"
I have been on "gardening leave" a couple of times, the specifics behind each was slightly different due to the differing contracts.
Once was simply my notice period. I had a 3 month notice period, thus could not legally work for anyone else for 3 months after handing in my notice, though my employer did not want me to attend the office during those 3 months. Of course they COULD have insisted I come to the office, but it wasn't in their interest to just waste my time (or their own).
Another time I had a 1 month notice period, and then a clause in my contract that gave the employer the option to pay me an additional 2 months salary, to stop me working for any competitor (very loosely defined) for an additional 2 months.
Of course the end result was the same, I had 3 months off paid, during which I did not work, but the structure of the contracts was very different. In the first instance they could have asked me to attend the office at any time, and it would be been a breach of contract for me to refuse. In the second instance, they did not have to exercise their option over the 2 month period (in which case I could have started my new job after 1 month), but after deciding to exercise it, all it did was mean I could not work for a competitor, they had no right to request that I attend the office.
"Gardening leave" as such is not a legal term, it's just the colloquial way of saying "I'm still being paid an ex-employer but not having to work for them"
CoolCurly said:
Your still actually employed by the old employer, and in breach of contract (employment contract that you signed/agreed to at the start of said contract).
The old employer could sue you for breach which could cost you more than the money gained in starting a new role early. The new employer would also be subject to liable should previous employer want to seek compensation.
Its usually a competiton thing when garden leave is given, where two companies are simular on what they do or the market they trade in - so advise would be to sit tight, enjoy your garden or the pub garden and wait for the clock to tick.
All of the above.The old employer could sue you for breach which could cost you more than the money gained in starting a new role early. The new employer would also be subject to liable should previous employer want to seek compensation.
Its usually a competiton thing when garden leave is given, where two companies are simular on what they do or the market they trade in - so advise would be to sit tight, enjoy your garden or the pub garden and wait for the clock to tick.
Fundamentally, you're still employed by your existing employer, but they are choosing not to ask you to do anything.
The rest depends on your employment contract but it may include terms that says that anything you do is their property...which could cause problems if you try to work for someone else.
I'd expect any reputable employer to refuse to let you start early if they knew about it, and to dismiss you for gross misconduct if they didn't know about it but found out later.
Just sit it out, it can hardly be an unfamiliar situation for your next employer.
Yo need to check what is in your contract & what you have signed up to. I have sort of just been through this with negotiating my new contract. My notice period is to be served as garden leave with a non compete clause which runs concurrently. You are effectively still employed whilst on garden leave but the devil is in the detail. My NCC effectively forbids me from engaging in any activities with competitors (future employers) so I might as well keep getting paid for 9 months then take up a new position.
If in doubt take paid/insured advice
If in doubt take paid/insured advice
Thanks for the advice so far.
I couple of things that haven't been answered yet.(i.e the actual question
)
Lets take the following things for granted:
1) The wording of the contract is that the person is still under contract, still being paid and therefore still an employee of the old company.
2) The employee wants, and intends to, breach this contract.
What I am trying to find out is the realistic consequences of this, not whether he is under contract or not.
I realise he could be sacked. I realise he is in breach of contract.
THe important question is, though, is there any monetary value in this breach? i.e. could the client sue him for damages? Could they possibly argue 'damages' in a situation where he is being told to sit at home and do no work. Does that not make it self evident that his absence will cause them no 'damage'?
Or can you legally assign an arbitrary value to damage purely for breach of contract even when there is no loss?
I couple of things that haven't been answered yet.(i.e the actual question
)Lets take the following things for granted:
1) The wording of the contract is that the person is still under contract, still being paid and therefore still an employee of the old company.
2) The employee wants, and intends to, breach this contract.
What I am trying to find out is the realistic consequences of this, not whether he is under contract or not.
I realise he could be sacked. I realise he is in breach of contract.
THe important question is, though, is there any monetary value in this breach? i.e. could the client sue him for damages? Could they possibly argue 'damages' in a situation where he is being told to sit at home and do no work. Does that not make it self evident that his absence will cause them no 'damage'?
Or can you legally assign an arbitrary value to damage purely for breach of contract even when there is no loss?
Edited by blindswelledrat on Friday 2nd September 16:52
Does the contract state that you can't work for anyone else while employed by your current company? Mine does, but as a result I imagine some don't.
Would you be doing the same roles in current and future company? Is there a reason the current firm would want to enforce a gap (sensitive sales info, whatever) between one job and the next?
Finally, are you gardening as you resigned, or as a result of redundancy?
Would you be doing the same roles in current and future company? Is there a reason the current firm would want to enforce a gap (sensitive sales info, whatever) between one job and the next?
Finally, are you gardening as you resigned, or as a result of redundancy?
The answer is "it depends".
Depends on your contract, the attitude of your old employer and the attitude of your new one. Remember that there are two contracts involved here - the one with the "old" employer and the one with the "new" employer.
Let's take your assumption that there is a breach of contract, and I'm going to assert that this is a material breach. Contracts will often have remedies defined in the event of breach but an employment contract won't cater for this situation.
Which leaves the other parties with the option to pursue financial options for remedies and damages. What they could be would be defined by the job and role but could be wide scoping. For example, I'd definitely expect the "new" employer to sue for their time, costs and any recruitment agency %.
Assuming it's not a low-responsibility labouring type job we're talking about, I'd expect to be facing a couple of claims for damages without a job.
It's impossible to be more specific. But financial claims against you are a definite possibility.
Depends on your contract, the attitude of your old employer and the attitude of your new one. Remember that there are two contracts involved here - the one with the "old" employer and the one with the "new" employer.
Let's take your assumption that there is a breach of contract, and I'm going to assert that this is a material breach. Contracts will often have remedies defined in the event of breach but an employment contract won't cater for this situation.
Which leaves the other parties with the option to pursue financial options for remedies and damages. What they could be would be defined by the job and role but could be wide scoping. For example, I'd definitely expect the "new" employer to sue for their time, costs and any recruitment agency %.
Assuming it's not a low-responsibility labouring type job we're talking about, I'd expect to be facing a couple of claims for damages without a job.
It's impossible to be more specific. But financial claims against you are a definite possibility.
If the person is on gardening leave, has the company asked for any work items back?
Like car, laptop, etc? that would normally be used in day to day jobs?
If so they are in breach of contract of gardening leave as they are not allowed to do anything that changes the current contract they have with the employee. So I suppose if they are in breach first the gloves are off.
As for the whole thing about damage to and seek to have repayment when technically not doing anything so no damage is caused, well technically as long as the new company is not in the same industry you could argue the point and try to get it cut short, in the same industry and I could see that being very expensive.
I always thought that gardening leave was to stop the person on it from contacting their existing clients during said X months and thus not allowing them to take them with to new company, etc, etc, etc... Or to stop you instantly using techniques from previous company to help new company, etc.
Like car, laptop, etc? that would normally be used in day to day jobs?
If so they are in breach of contract of gardening leave as they are not allowed to do anything that changes the current contract they have with the employee. So I suppose if they are in breach first the gloves are off.
As for the whole thing about damage to and seek to have repayment when technically not doing anything so no damage is caused, well technically as long as the new company is not in the same industry you could argue the point and try to get it cut short, in the same industry and I could see that being very expensive.
I always thought that gardening leave was to stop the person on it from contacting their existing clients during said X months and thus not allowing them to take them with to new company, etc, etc, etc... Or to stop you instantly using techniques from previous company to help new company, etc.
Brads67 said:
I`m working my notice now and starting with my new employer next month. There may be an overlap ( I should be at home on shore leave anyway when I start with the new company).
Am I correct in thinking there is nothing stopping you being employed by two companies at the same time ?
You better hope your current company don't find out they are paying you when you are in fact working for someone else.Am I correct in thinking there is nothing stopping you being employed by two companies at the same time ?
Even with whatever is in your contract I can't see them being very happy at you double dipping.
IANAL but I don't believe there's an automatic presumption that because you are employed by one company you can't be concurrently employed by another. Some companies' employment contracts explicitly require you to ask their permission and, logically, any additional employment that prevents you from fulfilling your obligations under your first is going to be problematic.
An informed answer the the OPs question is impossible to give without the factual background. Ultimately they are likely able to injunct you from breaching the contract, however whether they would do that would be down to the circumstances. A branch of Dominoes is not going to stop a moped delivery rider whereas head office might act if their CEO wanted to breach and work with a competitor without serving their contractual notice.
Being practical, why don't you just negotiate with the employer?
An informed answer the the OPs question is impossible to give without the factual background. Ultimately they are likely able to injunct you from breaching the contract, however whether they would do that would be down to the circumstances. A branch of Dominoes is not going to stop a moped delivery rider whereas head office might act if their CEO wanted to breach and work with a competitor without serving their contractual notice.
Being practical, why don't you just negotiate with the employer?
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