When a valued employee resigns to join a competitor, many employers reach for "garden leave", keeping the employee on the payroll but away from work, clients and colleagues during their notice period. Done properly, it is a powerful and enforceable tool. Done badly, a court may refuse to back it. Here is how garden leave works in England and Wales, and when it holds up.
What garden leave is
Garden leave is the practice of requiring an employee who is working out their notice to stay away from the workplace. They remain employed (and crucially still paid, with their benefits continuing) but they do no work and have no access to clients, staff or confidential information. The name comes from the idea that the employee is at home "tending the garden" while the notice period runs down.
The commercial purpose is simple: it keeps a departing employee out of the market for a period, lets their knowledge of your business go stale, and protects client relationships and confidential information during a sensitive time, without the employee being free to start at a competitor immediately.
Do you need an express clause?
The safest position is to have an express garden leave clause in the contract. Courts have been reluctant to imply a right to send an employee home where the contract does not provide for it, particularly for employees who have a genuine interest in actually doing their job, such as skilled or specialist staff who need to practise to keep their edge (a point illustrated by William Hill Organisation Ltd v Tucker [1998]). Without an express clause, requiring an employee to stay away may itself breach the contract.
A well-drafted clause will spell out that the employer may place the employee on garden leave during any notice period, that pay and benefits continue, and that the employer may withdraw duties, require the employee not to contact clients or staff, and require the return of property.
When will a court enforce it?
If an employee on garden leave threatens to break it (for example, by starting work for a competitor before the notice period ends) the employer can ask the court for an injunction to hold the employee to the clause. Whether the court grants one depends on much the same ideas that govern post-termination restrictions:
- Legitimate interest. The employer must be protecting something the law recognises (client connections, confidential information or workforce stability) not simply trying to stop ordinary competition.
- Reasonableness and length. A short period is far easier to enforce than a long one. Courts are wary of lengthy garden leave that keeps a skilled person out of their field for many months, treating it with similar suspicion to an over-wide non-compete clause. A court may enforce only part of the period.
- No oppression. The court will not allow garden leave to be used punitively or in a way that goes further than the employer's genuine need.
Garden leave and non-compete clauses together
Employers often use garden leave and a post-termination non-compete. Because both keep the employee out of the market, a well-drafted contract usually allows any period spent on garden leave to be set off against the later non-compete period. Without that set-off, the combined restriction can look unreasonably long, which risks the non-compete being struck down.
Practical points for employers
- Put a clear express garden leave clause in contracts for senior or sensitive roles.
- Keep paying salary and contractual benefits throughout.
- Keep the period no longer than necessary to protect your legitimate interests.
- Use a set-off clause so garden leave reduces any later non-compete.
- Act quickly if you need an injunction, delay weakens your case.
Key takeaways
- Garden leave keeps a departing employee employed and paid but away from work during notice.
- An express clause is strongly advisable; courts may not imply the right, especially for skilled staff with a "right to work".
- Enforcement by injunction turns on a legitimate interest and a reasonable, not excessive period.
- Set off garden leave against any non-compete so the total restraint stays reasonable.
Sources
- William Hill Organisation Ltd v Tucker [1998] ICR 291 (need for an express clause; the "right to work")
- The common-law doctrine of restraint of trade, as applied to garden leave and post-termination restrictions
- Established principles on injunctions to enforce garden leave
--- This article is general information about the law of England & Wales as at 2026, not legal advice. For advice on your circumstances, consult a qualified solicitor.