{"id":25150,"date":"2023-08-17T18:59:06","date_gmt":"2023-08-17T10:59:06","guid":{"rendered":"https:\/\/zegal.com\/?p=25150"},"modified":"2024-12-27T18:06:46","modified_gmt":"2024-12-27T10:06:46","slug":"everything-you-need-to-know-about-garden-leave","status":"publish","type":"post","link":"https:\/\/zegal.com\/en-au\/blog\/post\/everything-you-need-to-know-about-garden-leave\/","title":{"rendered":"Everything You Need To Know About Garden Leave in 2024"},"content":{"rendered":"\n

Garden leave describes the practice whereby an employee leaving a job (having resigned or otherwise had their employment terminated) is instructed not to attend the workplace or perform duties.<\/p>\n\n\n\n

It is generally accepted that employees continue to receive all their usual benefits, such as health insurance and full pay, during this period.<\/p>\n\n\n\n

\"A<\/a><\/figure>\n\n\n\n

<\/span>Why is it called garden leave?<\/span><\/h2>\n\n\n\n

Popularised by the 1980\u2019s satirical sitcom Yes Minister<\/a>, the term\u2019 gardening leave\u201d or \u201cgarden leave\u201d is frequently used in the United Kingdom, the Commonwealth, and former British colonies such as Hong Kong.<\/p>\n\n\n\n

It\u2019s a semi-derogatory term used to evoke the image of British civil servants on suspension at home in limbo with nothing to do but tend to their gardens. <\/p>\n\n\n\n

It sounds like a cushy paid holiday to the employee, but in reality, garden leave exists primarily to protect the employer from the possibly damaging actions of a leaving employee.<\/p>\n\n\n\n

The termination of employment<\/a> inevitably brings commercial risks and concerns to employers. Whether the employee is leaving voluntarily or the business has decided to terminate for some other reason, there will be recruitment, training, and in some cases, litigation costs that follow shortly after.<\/p>\n\n\n\n

<\/span>What is the garden leave meaning around the world?<\/span><\/h2>\n\n\n\n

The fundamental basics of Garden Leave differ slightly in Hong Kong, Singapore, and the United Kingdom.<\/p>\n\n\n\n

<\/span>Garden leave in the United Kingdom<\/span><\/h3>\n\n\n\n

An employee placed on garden leave is required to refrain from entering their workplace while serving the length of the gardening leave.<\/p>\n\n\n\n

Like a non-compete agreement<\/a>, employees cannot perform their work functions or interact with the company\u2019s business partners.<\/p>\n\n\n\n

However, The employee is required to be available and ready to help with any handover duties to the replacement employee.<\/p>\n\n\n\n

Any garden leave clause not expressly stated in the employment contract<\/a> can be debatable as a breach of contract if the employer enacts the garden leave. <\/p>\n\n\n\n

You can take the gardening part literally if you want, especially during the three days of summer. <\/p>\n\n\n\n

<\/span>Garden leave in Hong Kong<\/span><\/h3>\n\n\n\n

There are two<\/strong> ways to put an employee on garden leave in Hong Kong. <\/p>\n\n\n\n

    \n
  1. Put a clause in the employment contract. This is the most straightforward and fuss-free way to do it. Exercise of the clause after the employee has given their notice or rightly terminated is at the employer\u2019s discretion.<\/li>\n\n\n\n
  2. Alternatively, if a garden leave clause isn\u2019t included in the employment contract, the employer may only initiate garden leave with the employee\u2019s consent. <\/li>\n<\/ol>\n\n\n\n

    Garden leave clauses widespread in Hong Kong legal documents<\/a>, but they are all subject to tests of enforceability. If the clause is challenged, for a court to uphold the clause, a garden leave must: <\/p>\n\n\n\n

      \n
    1. Serve to protect a legitimate interest; and<\/li>\n\n\n\n
    2. Last for a reasonable period. <\/li>\n<\/ol>\n\n\n\n

      The test is left intentionally vague to allow the courts to consider all the factors surrounding any issues. <\/p>\n\n\n\n

      Legitimate interest can include the protection of an employer\u2019s goodwill fostered with clients and suppliers, ensuring the stability of an employer\u2019s workforce, or preventing the dissemination of any confidential information that the employee might otherwise possess. <\/p>\n\n\n\n

      <\/span>Garden leave in Singapore <\/span><\/h3>\n\n\n\n

      An employee can be placed on garden leave if:<\/p>\n\n\n\n

        \n
      1. The employment contract expressly states the Garden Leave clause, thus, the Garden Leave can be enacted in such an event.<\/li>\n\n\n\n
      2. In the event that the employment contract does not express the clause, it is arguable by the employee if the employer wishes to act on the Garden Leave clause.<\/li>\n<\/ol>\n\n\n\n

        Garden Leave clauses, when enacted, mean that the employee will still be an employee of the company, though they do not need to report to work.<\/p>\n\n\n\n

        The purpose of the garden Leave is to allow a proper and full handing over of duties and responsibilities to the incoming\/ replacement employee.<\/p>\n\n\n\n

        Similar to the factors in Hong Kong, the Singapore Court leaves the requirements for breach of Garden Leave somewhat vague and highly dependent on the context of the situation.<\/p>\n\n\n\n

        Therefore, it is advisable to understand and clarify the terms of the Garden Leave before signing and committing to the employment contract.<\/p>\n\n\n

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