No it’s not a special type of leave to go and tend to your growing veggie patch… Rather, gardening leave is a practice often utilised by employers to protect their interests where a high-level employee or executive has resigned or been dismissed. An employee on gardening leave continues to get paid the length of their notice or otherwise, but is prevented from accessing confidential information, client lists etc.
Often the employee will be asked to hand in all company equipment such as laptops and mobile phones and will find that their access to company databases may be locked. An employee may also be requested to cease contact with their clients. However, the employee must remain available to complete work as and when requested by their employer.
Why do employers do this?
As mentioned, the aim of such leave is to protect the interests of the business and its confidential information. It doesn’t mean that your employer thinks you are doing something unsavoury, it may just be that you hold a position that has access to a lot of confidential information and your level of involvement means that the employer needs to take extra precautions. Commonly, clauses around gardening leave will be written into your contract, in addition to clauses around restraint of trade, and both types of clauses have similar objectives. The difference is that gardening leave protects the employer’s interests in the last few weeks of the employee’s employment, and restraint of trade clauses aim to do this post-employment.
What do I have to do?
Whilst on gardening leave you should be careful to adhere to the terms of your contract with respect to confidential information etc. Failure to do so may be considered breach of contract. Further, being placed on gardening leave should not be used as an opportunity to start a new role a few weeks earlier, as you will generally still be bound by any non-compete clauses in your contract. You are still an employee and should remain contactable by your employer, should they require you to do work. However, generally you will not be required to attend the office or perform your usual duties. Whilst on gardening leave, you should still receive your standard remuneration and accrue leave, superannuation etc.
Should you have questions about your employer placing you on gardening leave, or about your contract in general, don’t hesitate to contact our employment law experts who can provide you with tailored legal advice.
Written by Shine Lawyers. Last modified: November 27, 2018.