Gardening Leave (UK)
A UK employment practice where an employee serves their notice period at home, remaining employed and paid but not required to attend work or perform duties.
- What Is Gardening Leave in the UK?
- Legal Basis for Gardening Leave in the UK
- Employee Obligations During Gardening Leave
- What the Employer Can Do During Gardening Leave
- Gardening Leave vs Payment in Lieu of Notice (PILON)
- How Gardening Leave Affects Post-Termination Restrictive Covenants
- Frequently Asked Questions About Gardening Leave in the UK
What Is Gardening Leave in the UK?
Key Takeaways
- ✓Gardening leave is a UK practice where an employee serves notice at home, still employed and paid, but not working.
- ✓The employee remains bound by all contractual duties: confidentiality, non-competition (while employed), and the duty of fidelity.
- ✓Employers use gardening leave to protect sensitive information, client relationships, and competitive advantage during the transition period.
- ✓A contractual gardening leave clause gives the employer the right to impose it. Without the clause, the employee can argue they have a right to work.
- ✓Courts generally support gardening leave clauses as a reasonable restraint, making them easier to enforce than post-termination non-competes.
Gardening leave (sometimes spelled "garden leave") is a distinctly British employment practice, though it's now common across many common-law jurisdictions. The name comes from the idea that the employee has nothing to do but tend their garden. The reality is more strategic. When a senior employee resigns to join a competitor, the employer faces a dilemma. If the employee works through their notice period, they continue accessing confidential information, client contacts, and strategic plans right up until the moment they walk across the road to the competitor. Gardening leave solves this. The employer says: "You don't need to come in. Stay home. We'll keep paying you." The employee is still technically employed, which means they're still bound by the implied duty of fidelity and any contractual obligations. They can't start working for the competitor because they haven't actually left yet.
How it differs from suspension
Gardening leave is not a disciplinary measure. Suspension implies wrongdoing or pending investigation. Gardening leave is a protective business decision. The employee hasn't done anything wrong. They've simply resigned (or been given notice), and the employer wants to limit their access during the transition. The distinction matters for the employee's reference and reputation. Being placed on gardening leave carries no stigma. Being suspended does.
Legal Basis for Gardening Leave in the UK
Gardening leave isn't specifically addressed in UK statute. It's a creature of contract law and case law.
The contractual clause
The safest approach for employers is to include an express gardening leave clause in the employment contract. A typical clause reads something like: "The Company may, at any time after notice of termination has been given by either party, require the Employee not to attend the workplace or to perform any duties. During such period, the Employee will continue to receive their normal salary and benefits." Without this clause, the employer's right to impose gardening leave is less certain. Some employees may argue they have a "right to work" and that being excluded from the workplace is a breach of contract.
The right to work argument
In William Hill Organisation Ltd v Tucker [1998], the Court of Appeal held that certain employees, particularly those with unique skills that need regular practice, may have an implied right to work that the employer can't override by imposing gardening leave without a contractual clause. The case involved a senior odds compiler whose skills would deteriorate without practice. For most employees, however, this argument doesn't apply. An accountant or marketing manager doesn't lose their skills during a few months at home. Post-Tucker, most employers added express gardening leave clauses to avoid the risk.
SG&R Valuation Service v Boudrais [2008]
In this case, the High Court granted an injunction requiring employees on gardening leave to comply with their obligations and not work for a competitor during the notice period. The court confirmed that where a gardening leave clause exists, the employer can enforce it through injunctive relief. This case strengthened the employer's position and confirmed that gardening leave, when properly implemented, is an effective tool for protecting business interests.
Employee Obligations During Gardening Leave
Despite not working, an employee on gardening leave is still an employee. That means all contractual and implied obligations continue.
Duty of fidelity
Every employee owes their employer an implied duty of fidelity (loyalty) during the employment relationship. This means the employee can't work for a competitor, set up a competing business, or solicit clients or colleagues during gardening leave. These obligations apply automatically because the employment relationship hasn't ended. The employee doesn't need a separate restrictive covenant for these obligations to bind them during gardening leave.
Confidentiality
The duty to protect confidential information continues in full. The employee must not disclose trade secrets, client lists, pricing information, business strategies, or other proprietary data to anyone, including their future employer. If the employee breaches confidentiality during gardening leave, the employer can seek an injunction and damages.
Availability and cooperation
Most gardening leave clauses require the employee to remain available during working hours to answer questions, assist with handover, or attend meetings if requested. The employee can take pre-booked holidays during gardening leave but should inform the employer. New holiday requests during gardening leave are subject to the employer's normal approval process.
What the Employer Can Do During Gardening Leave
Gardening leave gives the employer broad powers to manage the transition while keeping the employee paid and under contract.
Revoke system access
The employer can and should revoke the employee's access to email, internal systems, CRM, shared drives, and any other digital platforms on the first day of gardening leave. The employee doesn't need these tools if they're not working. Leaving access open creates unnecessary data security risk.
Redirect client relationships
The employer can inform clients that the employee is on gardening leave and introduce a replacement contact. The employee must not contact clients directly during gardening leave (unless asked to by the employer for handover purposes). This is one of the primary reasons employers use gardening leave: to transition client relationships before the employee departs.
Offset holiday against gardening leave
The employer can require the employee to take accrued but unused holiday during the gardening leave period, provided they give sufficient notice (under the Working Time Regulations 1998, the notice must be at least twice the length of the holiday being imposed). This reduces the employer's liability for untaken holiday pay at the end of the notice period.
Gardening Leave vs Payment in Lieu of Notice (PILON)
These are different mechanisms with different legal effects.
When to use which
Use gardening leave when the employer wants to protect client relationships, prevent competitive activity during the notice period, and allow time for information to become stale. Use PILON when the employer wants a clean break, the employee's continued employment (even from home) creates more risk than benefit, or the employer wants to avoid the administrative overhead of keeping someone on payroll during notice. Some employers combine both: gardening leave for part of the notice period, then PILON for the remainder.
| Feature | Gardening Leave | PILON |
|---|---|---|
| Employment status | Still employed | Employment ends immediately |
| Pay | Normal salary continues | Lump sum for the notice period |
| Benefits | Continue (pension, car, insurance) | Usually stop (depends on PILON clause) |
| Contractual obligations | All obligations continue | Only post-termination obligations apply |
| Non-compete during period | Automatic (still employed) | Only if post-termination covenant exists |
| Holiday accrual | Continues to accrue | No further accrual |
| Tax treatment | Normal PAYE | Subject to NIC and income tax (since 2018) |
| Employer's protection | Stronger (employee is under contract) | Weaker (employee is free, unless covenant exists) |
How Gardening Leave Affects Post-Termination Restrictive Covenants
Gardening leave and post-termination non-compete clauses work together, but they also interact in ways that affect enforceability.
Strengthening enforceability
UK courts assess restrictive covenants for reasonableness. One factor they consider is whether the employer took other steps to protect its interests. If the employer already imposed 3 months of gardening leave (during which the employee couldn't work for a competitor), a court is more likely to view an additional 6-month post-termination non-compete as excessive. But it's also more likely to enforce a shorter post-termination non-compete of, say, 3 months, because the combination (3 months gardening leave + 3 months non-compete = 6 months total) is more proportionate.
The credit card problem
Some employment contracts specify that the post-termination non-compete period is reduced by any time spent on gardening leave. For example: "The non-compete period shall be 12 months, less any period of gardening leave served." This means if the employee serves 4 months of gardening leave, the post-termination non-compete is reduced to 8 months. If the contract doesn't have this credit mechanism, the periods stack. Check the wording carefully.
Frequently Asked Questions
Can the employee refuse to go on gardening leave?
Can the employee do freelance or consulting work during gardening leave?
What happens if the employee breaches gardening leave obligations?
Does gardening leave apply to all employees?
Is gardening leave taxable?
Written by Adithyan RK