garden leave

969 Words2 Pages

It has to be stressed that the employer is still under a contractual obligation to pay the employee and the latter’s notice period should be sufficiently long enough to make garden leave worthwhile. It is essential for the employer to include these provisions at the outset. Without this employees could have the right to claim constructive dismissal if they are excluded from business operations and can show they need to work in order to preserve their skills. A valid claim in such a situation could make the notice period and indeed any restrictive covenants in the contracts void. Garden Leave may not be an attractive clause for those people, who in turn would feel prejudiced when kept out of the market. In a 1998 case , the Court of Appeal held that in considering the right to work, the court must look at the construction of the contract and the surrounding circumstances. In that particular case the court found that there was a right to work looking at the unique nature of the employee’s role, the skills involved in his job and whether those skills would atrophy through lack of use and the provisions of the particular contract of employment. Similarly in a 2008 case , the courts considered another application regards the right to work. The particulars of this case involved two directors of a company resigned giving three months’ notice. The company had previously discovered wrongful misconduct on behalf of the defendants and subsequently placed both men on garden leave. The employees immediately resigned claiming that they were ‘accepting a repudiatory breach by the company in requiring them to remain at home’. In order for the company to enforce the garden leave clause, it would have to extrinsically show that the employees had n...

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...her garden leave. It must be stressed that the employer still has a duty to establish that it will suffer significant damage from the resigning employee competing. If this is established then there is little chance of the employee defeating the injunction application because they are also suffering harm.

On the other hand, the rights of the employee must be expressly complied with to prevent possible cases of constructive dismissal. We have seen that employees still have the right to be paid their usual salary and benefits while they are out on garden leave, that the term for such should not be exceeded, that their lawful right to work is not infringed and that their statuory and contractural rights are not affected. It is not necessarily a dream way to leave a job as it can have many implications and complications on the employee when seeking future employment.

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