Mr Leonard was employed as Head of Desk at an interdealer brokerage firm, Square Global. He resigned without notice, arguing that he had been constructively dismissed and was therefore neither bound by his notice period nor by any post termination restrictive covenants. In this case, the EAT considered an appeal against a finding that a redundancy dismissal was fair although the process had been perfunctory and insensitive. Garden leave may sound like a fragrant and attractive option for an executive who resigns.
The risks are that the employee claims that placing them on garden leave is a repudiatory breach of contract because of an implied right to work. If correct, then this may result in the employee leaving immediately without serving their notice on the basis of a constructive dismissal which in turn, would render any post-termination restrictions void. It is generally believed by employers that they have the right to send an employee on “ gardening leave” either when the employee tenders notice of resignation or the employer provides notice of termination. There is a slightly different situation where the employer terminates an employment contract without notice and tenders in lieu a payment equivalent to the sum which would have been earned during the notice period.
Where there is no express garden leave clause in the employee’s contract of employment, they could argue that its imposition is a repudiatory breach of contract and claim constructive dismissal. For the duration of the garden leave , the employee must remain available to work for the employer during normal working hours. Garden leave as grounds for a constructive dismissal claim If you do not have an express garden leave provision in your contract you could claim that your employer is in breach of their contract with you.
In reaction to this breach of contract, you may have grounds to claim that you have been constructively dismissed. The employee can’t perform any work activities while on garden leave , unless you call them back into the office. This means, because the employee has to keep themselves available for any work that comes in, they cannot go to work for their new employer during this period. I was not referred to any authority, but a garden leave clause is understood to typically provide that if an employee gives notice, the employer may require the employee to spend a whole or part of the notice period at home, thus allowing confidential information to which the employee had access to become stale and keeping the employee out of the clutches of a competitor. However you need to ensure you have the right to put an employee on gardening leave.
If a business wants to enforce a garden leave clause, it should refuse to accept the termination of the contract and suspend the employee for the duration of that notice period. The same applies if an employee seeks to resign with immediate effect claiming constructive dismissal. The reasonableness of a garden leave clause will be judged on at the time of enforcement, i. The court can then decide the extent to which garden leave can be enforced.
So in the example above, the court could have decided on an injunction to enforce garden leave for months. Employees are entitled by law to terminate their employment at any time, so long as they give notice in accordance with statute and with any terms regarding notice contained within their contracts of employment. Garden leave usually occurs when an employee will have their employment terminated at a future date or have provided notice of their resignation. Your employer may place you on garden leave during the notice period to restrain you from communicating information to competitors or using company resources for other employers. In this article, we set out a checklist for a constructive dismissal resignation letter, which an employee might send to their employer if they are intending to make a claim.
What is constructive dismissal ? It’s also used to keep the former employee away from clients and customers or to prevent the resigning employee from encouraging others to join them. If you are resigning and thinking about bringing a constructive dismissal claim, most people don’t give any notice and leave with immediate effect. We’ll explain your options in confidence and without any obligation. Timing of unfair dismissal claim.
To bring a successful unfair dismissal claim, there must be a dismissal. Where an employee is put on garden leave but knows that they will be unfairly dismissed at the end of that perio can they bring an unfair dismissal claim from that point (i.e. during garden leave )? They could resign and claim constructive dismissal. It could also mean you lose your rights to enforce post-termination restrictive covenants. If the employee has a notice period which exceeds six months, the employer may not be permitted to enforce garden leave for the full period.
Garden leave is the colloquial term used where an employer does not require you to attend the workplace but will still pay your usual remuneration during the period of garden leave. You remain an employee throughout the period of garden leave. Put simply garden leave , also known as gardening leave , is a measure used by employers to keep employees who have tendered their resignation out of the competitive market place during their notice period.
Rather, it is a type of unfair dismissal claim (which can be brought in the employment tribunal) which is triggered by the employee resigning in response to something the employer has (or hasn’t) done in relation to the employment contract. Simply put, constructive dismissal occurs when an employee feels that their employer has acted so badly, that they can no. It is preferable to include a specific garden leave in the contract of employment and company policy. In case of a termination due to redundancy, employers are required to pay retrenchment compensation.
The general rule is that you should file a claim within three months of resigning (although there are some exceptions) – Get advice form an employment law specialist or solicitor.