What Is It?

Contrary to its name, gardening leave is not a particular type of leave to go and tend to grow a veggie patch. Instead, gardening leave is a practice often utilised by employers to protect their interests where a high-level employee or executive has resigned or dismissed. 

An employee on gardening leave continues to get paid the length of their notice period or otherwise but is prevented from doing any work or accessing confidential workplace information, client lists, work files, etc.

During gardening leave, the employee is usually asked to hand in all company equipment such as laptops and mobile phones and find that the employer may lock their access to company databases. The employer may also request an employee 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, such leave aims to protect the interests of the business and its confidential information. It doesn't mean the employer thinks the employee is doing something unsavoury; it may just be that the employee holds a position with access to confidential information. The level of involvement means that the employer needs to take extra precautions. 

Commonly, clauses around gardening leave will be written into the employment 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 or months of the employee's employment, and restraint of trade clauses aim to do this post-employment.

What are the employee obligations?

Whilst on gardening leave, the employee should be careful to adhere to the contract terms concerning confidential information etc. Failure to do so may be considered a 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 the employee will generally still be bound by any non-compete clauses in the contract. They are still employees and should remain contactable by the employer, should they be required to do work. However, generally, they will not be required to attend the office or perform their usual duties. Whilst on gardening leave, employees should still receive their standard remuneration and accrue leave, superannuation etc.