Garden leave: paying somebody to stay away

Garden leave is the arrangement where somebody who has resigned, or been given notice, stays employed and paid but does not come to work. They remain bound by their duties as an employee throughout — which is the point, and the thing that distinguishes it from simply paying someone to leave early.

What garden leave achieves

• Keeps the person out of current information, so what they take with them ages while they sit out the period.
• Keeps them employed, and therefore still bound by duties of loyalty and confidentiality that end with employment.
• Prevents them starting with a competitor during the notice period, which a restrictive covenant has to work much harder to do afterwards.
• Allows an orderly handover of relationships on your terms rather than theirs.
• Does not require proving anything, unlike enforcing a post-termination restriction.

Whether you can actually impose it

Only if the contract permits it, in most jurisdictions. Without an express clause, sending somebody home can amount to a breach — there is a line of thinking that employees have a right to actually work, particularly where skills decay or reputation depends on visibility. The practical answer is that the right to place somebody on garden leave belongs in the employment contract before it is ever needed, alongside the notice period, and adding it at the moment of resignation is not available.

Garden leave and post-termination restrictions interact. Many jurisdictions require time spent on garden leave to be set off against the length of any subsequent restriction, so a long period of one shortens the other — which means using both to their full extent is usually not possible and planning for it is a mistake.

Running it without creating problems

1. Confirm in writing what the arrangement is: still employed, still paid, not required to attend, still bound.
2. State clearly that they must remain available for questions and must not work elsewhere.
3. Remove systems access on a considered basis rather than reflexively, and record what was removed and when.
4. Deal with company property, including the laptop, the phone and anything on a personal device.
5. Keep paying everything, including benefits and accruing holiday, since this is employment rather than a settlement.
6. Decide and say what happens to outstanding holiday, as requiring it to be taken during the period usually needs to be stated.

Ettex Records keeps the notice dates, the garden leave period and the restriction that follows in one place, which matters because the second depends on the first in ways that are easy to miscalculate. The property and access checklist belongs with the leaver process, where it has a named owner rather than being improvised.