What can the employer do where a departing employee breaches a garden leave clause?
If an employee breaches a garden leave clause, for example by working for a competitor during the garden leave period, the employer could decide to apply for an injunction to prevent the employee from working. This is more likely to be granted where the employer can demonstrate clearly that the employee's actions will damage its business and that compensation would not be a sufficient remedy. The court will look for evidence that the employer has a legitimate interest in preventing the employee from working for a competitor. Such an interest might be the protection of confidential information that the employee had at his or her disposal and that would damage the employer's business if used by a competitor.
However, it is relatively rare for a court to grant such an injunction. The court may refuse to prevent the employee from working and instead award damages to the employer to compensate for the loss caused by the breach.