What is garden leave?
Garden leave refers to the situation where an employee resigns, or is given notice, and the employer chooses to pay their full remuneration and benefits throughout the notice period, but not to require them to attend work (ie the employee must stay at home and do the gardening, hence "garden leave"). The employee remains under contract to the employer, so is bound by all other terms and conditions, for example the implied duty of mutual trust and confidence, and is not permitted to start alternative work. Garden leave is commonly used where the employee is leaving the organisation to join a competitor.
In some circumstances, employment contracts have been held to include an implied "right to work", for example where the employee needs to continue working to keep up their skills. Tribunals and courts have held that remuneration is not the only concern to employees. Therefore, the right to put an employee on garden leave should be contained in the employment contract to avoid the risk that putting the employee on garden leave amounts to a breach of contract by the employer.