Gardening leave refers to the practice of requiring an employee
to take paid leave (as distinct from Annual Leave or Long Service
Leave), to tend to the garden so to speak – hence the name,
for the duration of their notice period. Whilst on gardening leave
the employee is required to be available to you if and when
required, and must be contactable throughout the entire period -
he/she is not required to perform their duties, attend the
workplace, contact clients, and be otherwise involved in the
How could it work for your business?
It's strategy or option typically utilised in relation to
your more senior or executive type employees, as a way of keeping
them out of the business so that you can firm up client
relationships and protect your confidential information, before
they commence employment elsewhere with a competing business or
A possible alternative to this option is to pay them in lieu of
notice and rely on the enforceability of any post-employment
restraint clause in their employment contract (bearing in mind that
post-employment restraint clauses are notoriously tricky and costly
Do I need to include a term in our employment contracts to
However, you can require an employee to go on gardening leave,
even if you don't have such a clause, subject to a number of
the employee doesn't earn commissions on work
the employee doesn't hold a public office; and,
the employee isn't in employment which is highly dependent
on publicity to enhance their reputation (for example, the
entertainment industry – TV presenters, actors and
professional athletes) and the ability to gain publicity could be
said to be part of the agreement with the employer.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This decision outlines the potential pitfalls of an employee making public comments on Facebook outside of work hours.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).