CLOSE SEARCH
Garden leave can be a critical tool in protecting employers business interests when employees leave. Our team regularly advises both employers and employees on gardening leave provisions and disputes.
Garden leave clauses allow employers to keep departing employees away from the business while still technically employed. This helps buy time to reorganise, particularly where the employee is in a leadership or client-facing role, while preventing him or her from immediately joining a competitor or taking sensitive information with them. Garden leave is often easier to enforce than post-termination restrictive covenants.
During garden leave employees :-
Cannot start new employment
Must remain available for work/queries
Continue to be bound by employment duties
Are bound to maintain confidentiality obligations
Cannot contact clients/colleagues
Must not work for competitors
We help clients use garden leave clauses effectively and proportionately. We regularly advise employers, employees, and third parties (including new employers drawn into disputes) on the drafting, enforcement, and defence of garden leave provisions. Our focus is on strategic, tailored solutions that protect commercial interests while minimising disruption and legal risk.
Our employment law specialists advise on:
Drafting robust and enforceable garden leave clauses.
Reviewing employment contracts and restrictive covenants for senior hires.
Managing exits and mitigating risks when enforcing garden leave.
Representing employers, employees, and new employers in garden leave and restrictive covenant disputes.
Taking swift action where significant and damaging breaches occur, including injunction proceedings and negotiated resolutions.
Our employment team recently advised a large recruitment consultancy on placing a senior team leader on garden leave. The employee was well-regarded in the industry, had a long history with the client and was extremely well connected. Our client suspected that he was planning to start his own niche recruitment firm, and they wanted to protect their business interests. We successfully implemented the garden leave, and protected our client’s sensitive commercial data. Ultimately, the employee did start their business, but this was many months later, and our client’s business relationships were protected.
The strength of any garden leave provision lies in precise, context-sensitive drafting. Employers should ensure the clause:
Specifies the duration clearly and allows flexibility (for example, “up to” a certain number of months).
Clarifies the employee’s status, pay, benefits, and obligations during leave.
Reserves the right to vary the duration or bring the leave to an end early.
Aligns with post-termination restrictions, ensuring the combined effect remains reasonable.
Addresses practicalities such as handover duties, IT access, and communication restrictions.
Includes a right of waiver, giving the employer discretion to enforce or release the employee.
Notifying contacts - inform clients or customers that the employee is leaving or on notice, but communications should be factual, professional, and avoid implying misconduct to reduce reputational or legal risk.
Redirecting inquiries - ensure that ongoing projects or client requests are handled by other team members to maintain service continuity and protect business relationships.
Employers may also restrict access to systems, emails, and phones during garden leave to protect confidential information
While garden leave can appear costly and potentially disruptive, it offers significant strategic advantages for employers when properly implemented. For employees, despite restrictions on their activities, garden leave can provide valuable benefits during their transition period.
For Employers:
Immediate protection of confidential information
Time for client relationships to be transferred
Prevention of immediate competition
Opportunity to stabilise team
Clear ongoing employment obligations
Usually easier to enforce than restrictive covenants
For Employees:
Full pay and benefits continue
Time off between roles
Clear legal status
Holiday entitlement continues
Pension/benefits maintained
May reduce restrictive covenant period
Managing legal exposure requires careful attention to both contractual rights and implementation. Employers face several significant legal risks when placing employees on garden leave.
Unenforceability - courts may not enforce if period excessive or protections unnecessary
Challenge to restrictions - employee may claim garden leave makes post-termination restrictions unreasonable
Injunction difficulties - court may refuse to enforce if employer's case not properly prepared
Damages inadequacy - may struggle to prove loss if employee breaches
Cost of paying non-working employee - full salary and benefits continue without productivity
Team disruption - remaining staff may need to cover workload
Client dissatisfaction - key relationships may suffer from sudden removal
Market perception - could be seen as overly defensive or heavy-handed by industry
Competitor advantage - business may lose ground during transition
Knowledge gaps - critical information may be lost during handover
Information security - difficult to monitor compliance with confidentiality
Client poaching - hard to detect subtle approaches to clients
Team solicitation - informal contact with colleagues difficult to prevent
Employees must understand their continuing legal obligations during garden leave. Breaching these obligations can have serious consequences.
Breach allegations - risk of employer claiming breach of garden leave obligations
Injunction threat - could face court action impacting new role
Damages claims - potential liability for employer losses
Reference impact - behaviour during garden leave may affect references
New employer patience - risk of offer being withdrawn
Industry reputation - may be seen as disloyal by market
Commission issues - ongoing commission payments may be affected
Benefit complications - impact on long-term incentives such as share options: May affect vesting or exercise rights
If garden leave obligations are breached, such as an employee joining a competitor early or contacting clients, employers may seek urgent injunctive relief and damages. Courts will only enforce garden leave where the clause is reasonable in scope, duration, and purpose, and where genuine business harm can be demonstrated.
Get in touch
If you would like to speak with a member of the team you can contact us on:
