UK: ´Green Fingers´

Last Updated: 17 January 2001

Putting an ex-employee on garden leave has become an increasingly common practice over the last decade. This is largely because restrictive covenants are being seen as a less effective measure of protection for employers. Although potentially useful at any time during the employment, garden leave tends to come into operation once either party has given notice to terminate. The employee is required to stay out of the office, and at home, for a period of time. This keeps the employee away from the business of the company (and so his knowledge about the company becomes increasingly out of date) while at the same time keeping him away from any competition and out of the employment market. In effect, many employers have used garden leave to protect confidential information by keeping valuable employees out of the market place.

Garden leave clauses are normally (but not necessarily) reserved for more senior staff. If an employer is going to include such a clause it should also include an obligation on the part of the employee to give the employer exclusive services for the duration of the employment relationship. It should also be combined with express confidentiality obligations.

As a garden leave clause is usually designed to protect confidential information it is unlikely that the courts will grant an injunction to enforce this sort of a clause unless the 'soon to be ex-employee' is in possession of such information and intends to compete in some way with the current employer (i.e. there must be some positive detriment to the employer in the employee's future plans). It is unlikely that an injunction would be granted to prevent an employee from working for an entirely unconnected business.

The garden leave injunction must be sought (or at least threatened) quickly, usually before the employee has had time to start his new job. It is, in many respects, more powerful than trying to enforce a restrictive covenant which many employees now refuse to sign and which is more likely to be declared unlawful as a restraint of trade by courts and tribunals.

This does not mean that a notice period of any length would be enforced under any circumstances. The employer must normally have a clause in the contract to the effect that during the period of notice it has no obligation to provide any work. Otherwise the court may refuse to grant an injunction at all. There are several exceptions where courts have implied a term that employees must be provided with work, particularly where employees skills may 'atrophy' if not exercised. These employees might claim constructive dismissal if left with nothing to do. Further, some notice periods may be too long to be enforced and the employer must show that the action of the employee will cause it loss – that the activity he or she will take up is genuinely competitive with the business of the old employer.

In the case of William Hill Organisation Limited v Tucker the Court of Appeal held that William Hill were under a duty to provide the employee with work which was available and therefore in the absence of a contractual provision permitting them to do so, could not insist that he stayed away from work on 'garden leave' for the duration of his notice period while continuing to receive his full salary. In this case the Court of Appeal also confirmed that the enforceability of garden leave clauses will depend on similar considerations to those applicable to the enforceability of restrictive covenants i.e. that the court should be careful not to grant interlocutory relief to enforce a garden leave clause to any greater extent than would be covered by a justifiable covenant in restraint of trade previously entered into by an employee.

A recent High Court case held that putting an employee on garden leave under an express term in the employment contract has the effect of terminating the employment relationship (but not the contractual relationship) and with it any implied obligation of good faith and fidelity. As a result the court would not use the implied terms of good faith and fidelity as the basis of granting an injunction restraining the employee from working for a competitor.

In the case of Symbian v Christensen there was a six month garden leave arrangement. The judge found that the employer's decision to forbid the employee from working "fundamentally and irretrievably undermines the employment relationship between the parties".

The court refused an injunction on the basis of any implied duty but it was able to rely on an express contractual exclusivity provision that forbade the employee from carrying out any commercial activity other than for the employer during the continuance of the contract.

This decision has been upheld by the Court of Appeal. It is important because it is a departure from the traditional view that an employee remains bound to comply with the obligation of good faith and fidelity during garden leave. Accordingly a bare garden leave clause which is not supported by any other contractual promises will still be effective to require the employee to stay out of the office, but, in practice, the clause will be useless since the employee cannot be stopped from moving to a competitor during the garden leave period.


To overcome the problems of this case consider:

  1. including an express provision that:
  1. lists the components of the implied duty of good faith and fidelity (e.g. the duty not to compete with the employer); and
  2. states that those duties shall apply throughout the term of the contract notwithstanding garden leave; and
  1. stating that other contractual obligations of the employee will continue for the term of the contract rather than the continuance of employment.

And finally, another decision has held that holiday leave continues to accrue during garden leave so an employee dissatisfied by being left in the garden could jet off abroad to somewhere exotic – if not facing an injunction that he or she should garden for a little longer!

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

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.