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 (2nd Edition)

South Korea Small Flag South Korea

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.

Turkey Small Flag Turkey

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.

The Netherlands Small Flag The Netherlands

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.

Thailand Small Flag Thailand

Yes.

United Kingdom Small Flag United Kingdom

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. While this is usually expressed as an express provision in the contract of employment, it may also be implied in to the contract.

It will not be possible to imply the right to place an employee on garden leave if refusing to provide work would be considered a repudiatory breach of contract. This may include, for example, where the employee has a skill which will decline if not used.

Luxembourg Small Flag Luxembourg

During the notice period the employer may release the employee from the obligation to perform his/her duties. Such release may however not impact the employee’s entitlements.

If the employer decides to release the employee from his/her work obligation during the notice period, this should be stated in writing, i.e either in the dismissal letter or in any subsequent letter.

Canada Small Flag Canada

While Canadian case law on the permissibility of ‘garden leave’ arrangements remains underdeveloped, there are indications that, at least in Ontario, a clearly drafted, reasonable garden leave clause may be enforceable.

However, in the absence of a contractual provision expressly permitting an employer to remove some or all of an employee’s job duties, there is a risk that requiring the employee to stay at home and not participate in work would constitute a substantial change to a fundamental term of the employee’s contract of employment, and thereby amount to constructive dismissal. Subject to the terms of the employment agreement, an employee who has been constructively dismissed can treat the contract as terminated and leave. In such circumstances, the employee can demand notice and/or severance pay and immediately begin seeking other employment.

Philippines Small Flag Philippines

The employer may put the worker in a garden leave during the notice period, but must ensure that the employee is still accorded his procedural rights. Nevertheless, care must be taken in implementing the garden leave since there is a risk that the employee on garden leave may claim constructive dismissal. There is constructive dismissal when the employee is compelled to give up his job because continued employment is rendered impossible, unreasonable, or unlikely as when there is clear discrimination, insensibility, or disdain on the part of the employer to the employee.

Nevertheless, during the notice and hearing period in a just cause termination, where the employee poses a serious and imminent threat to the employer or his co-workers, the employee may be placed on preventive suspension for a period not longer than thirty days without pay. A preventive suspension which exceeds this period may also be deemed to have ripened to constructive dismissal.

Israel Small Flag Israel

Yes, unless otherwise was agreed between the parties, an employer may require an employee to be on a garden leave.

Sweden Small Flag Sweden

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.

Ireland Small Flag Ireland

Yes, if the employment contract provides the employer with this power. However, it is possible for an employee to argue that any such provision is unlawful by reason of being in restraint of trade, for example, if the effect of complying with the garden leave provision would deskill him or her.

Germany Small Flag Germany

During the notice period or after a conclusion of a termination agreement the employer can require the worker to be on garden leave against the worker’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 practise and employees seldom object.

France Small Flag France

Yes, please refer to question 5.

Finland Small Flag Finland

Yes, an employer can order an employee to be on garden leave for either the whole notice period or a part thereof.

China Small Flag China

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.

Belgium Small Flag Belgium

Garden leave is not allowed under Belgian law. If the employer forces garden leave on the employee, this will constitute a constructive dismissal, providing the opportunity to the employee to immediately ask for the indemnity in lieu of notice he is entitled to in its entirety. A garden leave clause in the employment contract is therefore null and void.

With the consent of the employee, the employer can nevertheless foresee a garden leave arrangement in the framework of the termination of the contract.

Austria Small Flag Austria

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.

United States Small Flag United States

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.

Switzerland Small Flag Switzerland

In principle, an employer is allowed to put an employee on garden leave even against the latter’s will.

The prevailing doctrine and jurisdiction provide for a few exceptions where an employee has a legitimate interest in effectively rendering his/her work, though. This particularly applies to professional groups such as artists, professional athletes, surgeons, pilots, etc.

Singapore Small Flag Singapore

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 issue, but if this is not set out in the employment agreement, 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.

New Zealand Small Flag New Zealand

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.

Italy Small Flag Italy

The employer has no unilateral right to put an employee on garden leave, as according to the general principles of Italian labour law, the employee has the right not only to receive his/her contractual remuneration but also to perform his/her work and activities. However, a “pseudo” garden leave can be agreed in the context of termination of employment by agreement of the parties and subject to signing the agreement before the labour court, trade union or labour authority. More precisely, within the context of a settlement agreement, the parties could agree that the employee will remain on the employer’s payroll for a certain period of time and that during this period he/she will not be permitted to work or enter the office, or will not be allowed to access emails and IT systems and/or other employer assets.

Mexico Small Flag Mexico

It is not a common practice in Mexico, since the employer can terminate the employment relationship immediately.

Luxembourg Small Flag Luxembourg

During the notice period the employer may release the employee from the obligation to perform his/her duties. Such release may however not impact the employee’s entitlements.

If the employer decides to release the employee from his/her work obligation during the notice period, this should be stated in writing, i.e either in the dismissal letter or in any subsequent letter.

Spain Small Flag Spain

No. Garden leave clauses are not valid under Spanish legislation.

Japan Small Flag Japan

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.

India Small Flag India

There is no statutory provision expressly barring garden leave clauses and a lot of companies in India practice this concept. However, such garden leave can only be enforced during the notice period of termination / resignation of an employee. In the event, the garden leave is for a longer duration as compared to the notice period of termination / resignation of an employee, the employee and the employer will be required to expressly agree on the extended notice period.

However, when the validity of ‘garden leave’ clauses came for consideration before the Bombay High Court , it was argued that “the Garden Leave Clause is .... prima facie in restraint of trade and is hit by Section 27 of the Contract Act. The effect of the clause is to prohibit the employee from taking up any employment during the period of three months upon the cessation of the employment”. The Bombay High Court, accepting the argument, held that obstructing an employee who has left service from obtaining gainful employment elsewhere is not fair or proper.

Updated: May 9, 2018