"When and for how long should garden leave be used? When might it become a breach of contract?"

Scott: Let's look at garden leave, the concept of it. What is it? For how long might it be used and in what kind of circumstance?

Seamus: The basics of garden leave are that it is what it says on the tin to an extent. You go home and tend to your garden or you sit in the garden. It's usually paid, and you don't have to work during that period. You normally see it contained within contracts of employment where the employer will reserve a right to place an employee on garden leave.

Really, where I would see it mostly used would be at times of resignation when the employee has put in a resignation to the employer and the employer, as a precautionary basis, will say, "We're going to put you out on garden leave here because we need to protect our interests. We need to protect the business interests".

Certainly, from a legal perspective, a lot of the commentary comes down that the employer has to have a legitimate interest for protecting its business, and that has to be reasonable. It has to be sensible.

So the question looks at here how long it should be used for. It tends to be in contracts for the employees that are further up the hierarchy, so the managers, the directors, the people that there would be sensitivity around.

Scott: Some knowledge workers or sales force, you find them in that kind of thing.

Seamus: Yes. Even in solicitor practices, if you have a large client base that you've developed yourself, the employer will seek to protect that. They may put you out on garden leave in order to give them an opportunity maybe to go and meet those clients and make sure the clients are going to stay with the firm and not travel with the employee that's leaving. Those sorts of things happen there.

It can be very frustrating for an employee that is put out on garden leave. One of the issues that you need to consider is this aspect of the length of the garden leave. If you have a contract of employment with a notice period of six months, you provide your resignation, and the employer immediately that day puts you out on garden leave . . . six months on garden leave to some people might sound fantastic. Six months' pay, and being able to stay at home. But there's a risk that it can stifle your experience. It can stifle your skill.

It also prevents you from starting in another role during that period, and that can be frustrating because a lot of times when there are these longer notice periods, the employee is anticipating in advance that, "I might be able to do a deal here with my employer, get out a bit earlier, and get across to the new employer". Certainly, the new employer will not be happy if you're saying, "I have a six-month notice period to do here".

Where this all can lead to and can develop is oftentimes that the employee doesn't adhere to the garden leave provisions and then seeks to start with their new employer earlier. You can end up in the High Court with injunctive relief cases that are sought, and that's forcing the employee to abide by the terms and conditions of their employment.

The key to that for me is that if you're going to have garden leave, it needs to be in the contract of employment. I think it creates difficulties for you, and I have had this in the past where clients will say, "But we're paying them in any event. They're not losing anything". I'd be saying, "But it's not in your contract of employment here, and it's going to cause you difficulties because how are you supposed to enforce something that isn't in the contract? There's no contractual relationship in that respect".

Scott: Generally, there's no right to work for most employees. There's a right to be paid. I think that's where your employers might have taken it from, saying, "No, we're paying them. It's okay". But there's more to employment than just being paid. There's certainly case law in the past where actors, singers, and whatever, you have to be in the public eye. But there are more mundane jobs, if you like, that are also covered by that right to work.

Seamus: Absolutely. I think in relation to the second part of the question as to what's reasonable and what constitutes a breach, there's certainly case law. One of the longest cases I could find was Symbian Ltd v Christensen of 2000, and the aspect was in and around that the employer needed to show the existence of a legitimate interest in order to enforce the restriction in the contract.

When we come to look at the duration of the length of the garden leave period, there are a couple things that you need to think about.

If it's going to cause a difficulty for the employee in relation to their work, if they are paid commissions and bonuses and things like that, I think you have to take it. If that's on a monthly basis, that's going to fall in as their pay, and they're going to have to be paid that. Employees get very worried that if they're on garden leave they're going to lose their benefits and entitlements that they would get.

The second part of it is where you have to work, where there's an element that you have to maintain a professional level of skill. For the likes of doctors or surgeons, they have to be continually working in order to develop their skills and to maintain those skills, and if there's a period of garden leave where they're prevented from doing that, it can have an impact on their ability then to continue to do the job and those sorts of things.

The other aspect as well is someone in the entertainment industry that needs to be out there. If they're not out there and they come off radar for a period of time, they're going to lose their . . .

Scott: Chance to work. They're going to be forgotten. That's the trouble.

Seamus: That's the problem with it. We probably don't deal every day with those sorts of situations, but, certainly, on the other side of it where there's a CPD element to your job, if you're prevented from doing that as a result of a period of garden leave, it could leave you in difficulties and in strife.