Garden leave describes the practice of instructing an employee who is leaving an employer following a resignation, or termination of their employment to stay away from work, possibly spending their time gardening, during their notice period.  The practice is often used to prevent employees from working for the employer's competitors for a period of time.

In the High Court case SG & R Valuation Service -v- Boudrais it was held that an employer will, in certain circumstances, be entitled to force garden leave onto senior directors even when there is no such provision in the contract.

In the above case, two directors resigned with the intention of working for a rival company. There was strong evidence that the employees had the intention to misappropriate confidential information. In order to protect their business the employer insisted on a period of garden leave, in an attempt to delay the date when the employees joined their new employer, and sought an injunction enforcing this. The employees resisted the application for injunction on the grounds there was no garden leave clause in their contracts of employment, they had a right to work, and that by not providing work the old employer was in breach of contract, which they argued, entitled them to leave and go elsewhere.

The court held that the implied duty for the employer to provide work is subject to the qualification that the employees have not, as a result of some prior breach of contract or other duty, "rendered it impossible or reasonably impracticable for the employer to provide work". As there was a prima facie case on the documentary evidence that the directors had done exactly that, the judge held that they had no right to be provided with work by the old employer, and so the employer could insist on a period of garden leave. The injunction was therefore granted. 

Part-time workers and bank holidays 

The Working Time Regulations give all workers the right to 24 days of paid leave every year. A part-time employee will have a pro-rata entitlement, for example, an employee that works 3 days a week is entitled to 14.4 days annual leave.

However, difficulties arise in respect of the entitlement of part-timers to bank holidays. Essentially, there are two ways that employers can adopt to calculate how many days leave a part-time worker is entitled to:

The normal working days approach: This provides paid time off for public and bank holidays that fall on the days which the part-timer would normally work. Clearly, this approach favours workers that normally work on Mondays; however, there is an argument that this method is discriminatory based on which days are worked.

The second approach is the pro-rata approach: This calculates the number of bank holidays that a part-time employee is entitled to based on percentage working time. For example, if an employee works Tuesday to Friday (80%) of the week and suppose there are 6 bank holidays falling on a Monday (which the employee would not normally benefit from), and there are two bank holidays falling on other days (which she would normally benefit from). Applying 80% of the total of eight bank holiday days, the employee would receive 6.4 days’ leave. Because two of the bank holidays fell on days she worked, she is therefore owed an additional 4.4 days.

Agency Workers

Concern over suggestions that agency workers might become employees of client customers, rather than the agency, have been rebuffed by a robust decision given by Court of Appeal. The principles highlighted as a result of this case are:

• It will be a ‘rare case’ when the arrangements between the agency, the agency worker and customer are genuine where evidence will justify an employment contract between an agency worker and a customer.
• However, if there is a pre-existing employment relationship between the worker and the customer then that may be well be different.
• A ‘rare case’ will require words or conduct to show that the agency arrangements do not adequately reflect how the work is actually being performed. For example, it would need to be shown that the agency worker is now working under mutual obligations with the customer that are not compatible with agency arrangements and therefore require a contract to be implied. For instance, if the agency worker benefits from the customer’s employee-only benefits.
• Time does not automatically justify implying an employment contract as a matter of necessity.

This provides somewhat of a security blanket for employers and agencies; however, may leave temporary agency workers in legal-limbo if they find themselves without a contract of employment.