Garden leave - can an employer dig itself out of a hole?


Garden leave - can an employer dig itself out of a hole?

When it comes to senior or key staff leaving it's often the case that employers will put the employee on 'garden leave' - they'll be paid during their notice period whilst being kept at home and away from the office, contacts and the business. But can garden leave be enforced if there's nothing in the employee's contract on the subject?

In the case of Christie v Johnston Carmichael, the Employment Appeal Tribunal said 'yes'.

Mr Christie worked for a firm of accountants in a senior client relationship role. Following a dispute, Christie resigned and claimed constructive dismissal. He gave three months notice in his letter of resignation. The firm responded by putting Christie on gardening leave despite there being no contractual term to do so. Christie argued that this would lead to his being 'de-skilled' if he didn't work (which was his right). The EAT said that he wouldn't be de-skilled if he carried out private studies at home and that anyway, his role wasn't unique and didn't require formal accountancy qualifications.

Of course if the role was unique or if it did require formal skills, the EAT may have ruled differently.

This was first published in March 2011

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