Can an employer require a worker to be on garden leave, that is, continue to employ and pay a worker during his notice period but require him to say at home and not participate in any work?
Employment & Labour Law (3rd edition)
Garden leave is not available under argentine law. However, even when employer and employee may agree to garden leave, this agreement would not be fully valid and enforceable under argentine law. Employee may demand to resume services even after providing express consent.
There are no laws or rules in China regulating the legal term of ‘garden leave’, however such a practice exists where employers grant employees ‘garden leave’ on full pay. Ordinarily the legal risks for the company in these circumstances are not very high, unless the employees claim the work conditions differ from those stipulated in the employment contract. In this situation, the evaluation of the relevant consequences can be made on a case by case basis.
Under no circumstances can the worker be discontinued from providing services, not even assuring payment of the corresponding remuneration. Such action constitutes a dismissal untimely and unjustified. Exceptionally, when a dismissal with a fair cause procedure (Visto Bueno) is processed to prove a fair cause of dismissal, the authority may provide a suspension for the provision of services with the consignment in guarantee of the value of one month of remuneration, because that is the time it takes this administrative procedure .
Yes, please refer to question 5.
The employer can require the employee to be on garden leave against the employee’s will only if the employer’s interests regarding the garden leave prevail. Provisions stating the employer’s right to make the employee go on garden leave are often found in employment contracts. Such a provision is valid, if it concerns dismissals for cause (with phasing-out period) or dismissals due to conduct. In cases of dismissal for operational reasons or for reasons of illness the employer can only require the worker to be on garden leave under certain conditions. However, sending employees on garden leave after a dismissal is common practice and employees seldom object.
No. Employer may not unilaterally impose it, but it is permitted as long as the parties agree on it.
There is no concept of garden leave in Indonesia – however, if there is a specific provision in the employment agreement and/or company regulation of the employer, an employee may be put on a garden leave period.
Under Italian law, the employer is not allowed to require employees to be on garden leave over the notice period (in other words, garden leave is not permitted according to Italian law).
If employees are exempted from working over the notice period, the employment relationship has to be considered as definitely terminated as from the date on which the dismissal letter is served and the relevant employee is to be granted with the relevant indemnity-in-lieu (or a portion hereof, if he/she has been partially exempted from working over the notice period).
Yes, an employer may exercise its discretion to place an employee on garden leave during his notice period.
According to statutory provisions in the WEA, an employee has a right to work during the notice period. In connection with the issuance of the notice of dismissal, employees can agree to relinquish their right to remain in their post throughout the notice period.
Where termination is due to authorized causes, there is no legal prohibition on requiring a worker to be on garden leave.
In a just cause termination, the employer may preventively suspend an employee undergoing investigation if the employee’s continued presence in the company premises during the investigation poses a serious and imminent threat to the life or property of the employer or the employee’s co-workers. The suspension should only be for a maximum period of 30 days, during which period the employee is not entitled to his wage and other benefits. After the lapse of the 30-day period, the employee must be reinstated to his former position or to a substantially equivalent position. The 30-day period may be extended by the employer for a justifiable reason, but the employee shall be entitled to his wages and other benefits during said extension.
Where an employee is entitled to a notice period by contract or statute, the employer generally may require the employee to remain at home and not participate in work. Unlike in many countries, however, it should not be assumed that garden leave arising from an employee’s obligation to provide pre-termination notice under an employment contract would be valid in the U.S. if it does not satisfy restrictive covenant requirements. When used to keep an employee out of the work environment, garden leave operates much the same as a broad non-compete clause and has been recognized and scrutinized by the courts as such, as discussed in response to question 17.
Mattos: No. There is no garden leave in Brazil. It is not legal for the employer to request the employee to stay at home during the notice. The employer may require the employee to continue working during the notice period or not, but if the employer does not require the employee to continue working during the notice period, the employee is allowed to work elsewhere.
Garden leave is not regulated under Turkish law. An employee whose employment contract is terminated shall continue to work during the notice period. However, a garden leave clause may be incorporated into an employment contract by mutual agreement of the parties, because its effect would be beneficial to the employee (in that they would be paid without working) and therefore would not contradict the rationale of the TLC.
In principle, employers can put dismissed employees on garden leave during part or the entirety of the notice period. This is particularly common in the financial sector or if the employee is part of senior management.
However, certain specific categories of employees retain the right to work, such as those whose professional skills require that they work continuously (e.g. surgeons, artists, athletes, etc.).
When an employee is put on garden leave, the employer must pay their salary and grant them all contractual benefits during the entirety of the notice period.
The main rule for private employers is that they under certain circumstances may unilaterally release the employee from performing work during the notice period. This lies within the employer’s right to direct the work at the workplace. However, the EPA prohibits the employer from suspending the employee from work during a dispute regarding the validity of a termination of the employment.
A period of garden leave can only be imposed for part or all of the notice period if the employee has agreed. An employee’s agreement is commonly given in an express provision of an employment agreement. During a period of garden leave, the employee continues to be bound by the terms and conditions of employment (including the employee’s duty of fidelity).
If an employee’s employment agreement does not include a garden leave clause, and the employee refuses to provide consent to remain away from the work place, an employer cannot force the employee to do so.
Employers may (and often do) require an employee whose employment contract is terminated to stay at home: it may be decided at any time and communicated by any means, including email.
Garden leave is not explicitly regulated by law.
Arguably, there are alternatives to reach substantially similar effects; however:
- this very much depends on factual circumstances - for example, if this is implemented in a straightforward redundancy context, with a view to facilitate additional time-off to employees to search for alternative employment, this is unlikely to be objected by the employees; and
- it is not entirely risk-free particularly from an employees' health and safety perspective, as well as from a tax perspective.
Yes, in the case of a dismissal procedure based on the commission of a severe misconduct, the employer is entitled to exonerate the worker from attending work and performing his or her duties until the conclusion of the procedure, period during which the worker will be on a paid leave. However, the employer must ensure the worker the access to all information required for his or her defence in connection with the dismissal procedure.
Nevertheless, if before beginning said dismissal procedure (for example, during the investigation process) the employer requests the worker to stay at home, the employer could grant said worker a paid leave.
Yes, as long as the employer pays salary, it can generally require its employee to stay at home and not participate in any work during his notice period.
Dutch employment law does not have the concept of garden leave. As a main rule an employee is entitled to be allowed to his/her work, as well during the notice period.
Under Austrian law the employers may release employees from their duties to work during the notice term. Furthermore, the employee shall stay away from work during the entire or part of the notice period while she/he continues to be employed and to receive pay and benefits. While a worker is on garden leave, she/he is usually forbidden to contact any of his employer’s customers or fellow employees and is also denied the company car, laptop, smartphone (unless private use has been permitted). During the time on garden leave, the employee must observe any restrictions in the contract such as competing or doing second job whilst an employee, and also observe possible implied duties. In practice, an employee is expected to be available to provide their employer with information and support when required while being on garden leave.
It is not a common practice in Mexico, since the employer can terminate the employment relationship immediately.
This is possible if the employer has the right to require the employee to take garden leave under the contract of employment. It is common practice to include such a provision, particularly for senior employees or those in customer/client facing roles. If the contract does not contain such a provision, it may still be possible to put the employee on garden leave, but this will depend on the circumstances. Employees whose skills may become less valuable during a period away from work or who are remunerated primarily by reference to performance through commission or bonus may in particular be able to demonstrate that they have a “right to work” while in employment. They may be able to argue that placing them on garden leave is a breach of contract.
The legislation of the RA does not define such a provision, but if the employer fails to observe the terms of the notice and dissolves the labour contract earlier, it will be subject to the payment of a fine foreach day the notice was not made, which shall be calculated based on the average daily salary of the employee.
Yes, the employer may instruct an employee to remain at home during the notice period. This form of leave is also referred to as an “administrative leave” in Korea.
The employer may require a worker to be on “garden leave”.
In such cases, the employer must pay wage compensation to the worker and recognize all other employment rights as if the worker worked until the end of the notice period.
The “garden leave” must be agreed upon in writing, either in the notice of termination or in a separate decision.
Yes, an employer may place an employee on garden leave where there is a contractual right to do so or with the consent of the employee.
It does not apply to our legislation.
Employers may decide to put dismissed employees on garden leave, with maintained pay until the end of the notice period.
During this period, employees are still bound by their employment contract and especially their duties of loyalty and confidentiality.
There is no prescribed right for the employer to require the worker to be put on garden leave. Employment agreements may specifically provide for this, but if this is not done, employers may generally put an employee on garden leave if the employee continues to be paid his/ or her entitlements and salary.
However, the period of garden leave should not be so long as to render the employee’s skills obsolete. For certainty, it would be advisable for the employer to clearly set out its right to put the employee on garden leave in the employment agreement.