Adding non-compete agreements and gardening leave clauses in your employment contract is also not a simple matter. If not done right, you can set yourself up for legal repercussions if your employee files to nullify the contract on the grounds of coercion.
Employees also lose out when gardening leave is in effect. Work references in America: How to get them and why you need them. Conflict happens when the terms of the contract are not clear or appropriately explained from the beginning. Since the agreement can only be binding if both parties voluntarily agree on the terms, any party in the contract can pretend they misunderstood its provisions and petition that it be declared void from the start.
What is Gardening Leave in the US? March 5, An overview of Gardening Leave in the US Gardening leave is a form of legal protection that companies take when hiring senior executives or employees who are given access to trade secrets and highly classified information. The same applies if an employee seeks to resign with immediate effect claiming constructive dismissal. The longer the period of proposed garden leave, the less likely a court is to enforce it in full. For example, where there is a two-year notice period, it is unlikely that an employer would be able to serve notice and place the employee on garden leave for the whole of that notice period.
Where an employee is placed on garden leave during the notice period, a court may be less likely to enforce post-termination restrictive covenants. It is sensible to limit the period for which the employee can be sent on garden leave as this will increase the likelihood that it will be held to be enforceable.
This will be particularly important if the employee has a long notice period. A period of more than six months is unlikely to be enforceable in most cases. This briefing just provides an overview of the law in this area. You should talk to a lawyer for a complete understanding of how it may affect your particular circumstances.
It avoids any breach of contract claim and also provides clarity for both parties on what garden leave will mean and what you as the employer are entitled to do in these circumstances. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.
The main content of this article was provided by Emma Kieran. Kieran clarendonexecutive. Email Address Password Remember me. Not registered with us? Why do employers use garden leave? Typically, you will find a garden leave clause in the contracts of senior employees to: Stop an employee working for a competitor until their notice period has come to a close so even though they are not in the office, you retain control over them ; Keep them away from confidential or sensitive company data and prevent them from misusing this data; Stop the employee from poaching customers or colleagues; or Enable the successor to the role without worrying that the other employee will get in the way.
Get Your Free Consultation. When can you put someone on garden leave? Garden leave can be applied when someone resigns from their post or is dismissed with notice. What are the risks for employers? It could also mean you lose your rights to enforce post-termination restrictive covenants. Latest news and insights. View the latest articles. Autumn Budget The key points for employers 3rd November
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