Gardening Leave: When You Can Use It and How

Gardening leave is one of the most useful tools in an employer's toolkit when managing resignations and terminations. Used well, it protects your business, your clients, and your team. Used badly (or without a contractual basis), it can land you in front of a tribunal.

This guide explains what gardening leave is, when you can use it, what you need to pay, and how to draft a clause that actually holds up.

Last updated: April 2026

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Gardening Leave Employer Guide UK: What It Actually Means

Gardening leave is when you tell an employee to stay away from work during their notice period. The employee remains employed, continues to receive their normal pay and benefits, but does not attend the workplace or carry out any duties.

The term comes from the idea that the employee has nothing to do but tend their garden. In practice, it is a mechanism for protecting your business during a sensitive transition.

The employee is still bound by their contract of employment throughout. That means their duties of confidentiality, good faith, and any restrictive covenants all remain in force.

Key point: gardening leave is not the same as suspension. Suspension is a neutral act pending investigation. Gardening leave is a decision about how an employee serves their notice period.

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When Can You Place Someone on Gardening Leave?

You can only place an employee on gardening leave if one of the following applies:

1. There is an express gardening leave clause in their employment contract. This is the safest and most common route.
2. The employee agrees to it. Even without a clause, if both parties consent, you can agree to gardening leave arrangements.

Without a contractual clause or agreement, unilaterally placing someone on gardening leave is a breach of contract. Why? Because employees generally have an implied right to work. Refusing to provide work, while still paying the employee, can be treated as a repudiatory breach, particularly for senior roles where maintaining skills and professional standing matters.

Roles Where Gardening Leave Is Most Common

Gardening leave is particularly useful for:

• Senior managers and directors who have access to strategic plans and client relationships
• Sales staff with close customer contacts and knowledge of pricing
• Employees leaving to join a direct competitor
• Anyone with access to trade secrets or confidential information
• Key technical staff who could take proprietary knowledge to a rival

For junior or administrative roles with no access to sensitive information, gardening leave is rarely necessary and can be an unnecessary cost.

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What Is Gardening Leave UK: The Legal Framework

There is no specific statute in UK law that governs gardening leave. It operates under general contract law principles. The key legal points are:

The Implied Right to Work

Courts have recognised that employees, particularly those in senior or skilled roles, have an implied right to be provided with work. The leading case is William Hill Organisation Ltd v Tucker [1999], where the Court of Appeal held that a senior employee could not be put on gardening leave without an express contractual provision.

This means that if you want the option to use gardening leave, you need a clause in the contract. Relying on an implied term or a vague mutual understanding is not enough.

Restrictive Covenants and Gardening Leave

One of the main strategic reasons for using gardening leave is that it can reduce the effective period of post-termination restrictive covenants. Many courts take the view that time spent on gardening leave counts toward the covenant period. If you have a six-month non-compete clause and the employee serves three months on gardening leave, a court may consider that only three months of the non-compete remains enforceable after termination.

This is important to factor in when deciding the length of gardening leave. If your non-compete clause needs to last six months post-departure, do not put the employee on six months of gardening leave, as you may have nothing left.

During Gardening Leave, the Contract Continues

The employee remains employed. Their terms and conditions apply. This includes:

• Contractual pay, benefits, pension contributions, and holiday accrual
• Duties of confidentiality and good faith
• Restrictions on working for anyone else (if stated in the contract)
• Compliance with reasonable instructions

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Gardening Leave Pay UK Employer: What You Owe

During gardening leave, you must pay the employee their full contractual pay and benefits. This is not optional. The employee has not resigned from their pay; they have been told not to come in.

What Counts as Full Pay

Full pay during gardening leave means:

• Basic salary in full, on normal pay dates
• Contractual benefits including private health cover, car allowance, pension contributions, and any other contractual entitlements
• Holiday accrual continues throughout the gardening leave period. If the employee has accrued but untaken holiday, you can require them to take it during gardening leave (provided your contract or gardening leave clause permits this)
• Commission and bonuses can be more complex. If the employee has a contractual right to commission on deals closed or in progress, you will likely need to honour that. If commission is discretionary, you have more flexibility, but withholding it entirely during gardening leave can still give rise to a claim

What About Expenses and Company Property?

It is standard practice to require the employee to return all company property at the start of gardening leave: laptop, phone, access cards, files, and any confidential documents. Your gardening leave clause should expressly require this.

Can You Offset Holiday Against Gardening Leave?

Yes, provided your employment contract or gardening leave clause specifically permits it. Without express wording, you cannot simply deduct holiday entitlement from the gardening leave period. Including this right in your employment contract is straightforward and avoids argument.

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Gardening Leave Employment Contract Clause: What to Include

A well-drafted gardening leave clause is essential. Without one, your ability to use gardening leave is limited to cases where the employee agrees. Here is what your clause should cover:

Essential Elements

1. The right to place the employee on gardening leave during all or part of their notice period, at your discretion
2. The right to exclude the employee from the workplace and from contact with clients, customers, suppliers, and colleagues
3. The obligation to continue paying salary and contractual benefits during the period
4. The requirement to return company property immediately on being placed on gardening leave
5. The right to require the employee to take accrued holiday during the gardening leave period
6. A prohibition on working for any other employer during the gardening leave period (unless you give written consent)
7. The obligation to remain available to answer queries and assist with handover during reasonable hours
8. Confirmation that all other contractual obligations (confidentiality, restrictive covenants, etc.) remain in force

Sample Clause Wording

The Company reserves the right, at its absolute discretion, to require you to remain away from the workplace and to cease performing your duties during all or part of your notice period ("gardening leave"). During any period of gardening leave, you will continue to receive your full salary and contractual benefits. You will not, without the prior written consent of the Company, attend any other workplace, work for any other person or business, or contact any client, customer, supplier, or colleague of the Company. You will return all company property on the first day of gardening leave and will remain available during normal working hours to assist with handover or answer queries. The Company may require you to take any accrued but untaken holiday during the gardening leave period.

This is a starting point. Tailor it to your business and the seniority of the role. For senior hires or roles with access to sensitive commercial information, consider a more detailed clause that addresses specific scenarios.

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The Practical Steps: Putting Someone on Gardening Leave

When you decide to place an employee on gardening leave, follow these steps:

1. Check the Contract First

Before doing anything, confirm there is a gardening leave clause in the employee's contract. If there is not, you will need the employee's agreement. Do not assume you can impose it.

2. Confirm in Writing

Write to the employee confirming:

• That they are being placed on gardening leave with immediate effect
• The dates of the gardening leave period
• Their obligations during the period (return property, remain available, no other work)
• Confirmation that pay and benefits continue
• Whether they are required to take accrued holiday during the period
• Reminder of their ongoing obligations (confidentiality, restrictive covenants)

3. Cut Access Immediately

On the same day, disable or suspend:

• Email and IT system access
• Building access and security passes
• Remote access (VPN, cloud platforms, internal tools)
• CRM and client database access

This protects your data and prevents any accidental or intentional breach of confidentiality.

4. Communicate Internally

Brief the team that the employee is on gardening leave. Keep it factual and professional. Redirect the employee's responsibilities and client contacts immediately.

5. Manage the Handover

Even though the employee is not coming in, you may need them to answer questions about ongoing work, client matters, or internal processes. Your gardening leave clause should allow for this. Be reasonable in how often and how you contact them.

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Common Mistakes Employers Make

No Contractual Clause

The most common mistake. You assume you can place someone on gardening leave because you are still paying them. Without a clause, the employee can argue breach of contract and potentially treat themselves as constructively dismissed.

Forgetting About Restrictive Covenants

As noted above, gardening leave can erode the effective period of post-termination covenants. If you are relying on a non-compete or non-solicitation clause, factor gardening leave into your calculations. Discuss this with your legal adviser before deciding the length of gardening leave.

Not Cutting Access

Placing someone on gardening leave but leaving their email active, their CRM access open, or their building pass working defeats the entire purpose. Act on the same day.

Treating It as Punishment

Gardening leave is a business protection measure, not a disciplinary sanction. If you use it punitively or inconsistently (for example, only ever placing women on gardening leave after they resign), you could face discrimination claims.

Stopping Pay or Benefits

If you stop paying the employee during gardening leave, you are in breach of contract. Full pay and benefits must continue throughout the period.

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Gardening Leave and Settlement Agreements

Gardening leave is often used alongside a settlement agreement. For example, where a senior employee is leaving by mutual agreement, you might combine:

• A period of gardening leave (protecting the business during the transition)
• A settlement agreement (providing a clean exit with agreed terms, including an enhanced payment and agreed reference)

This combination is particularly effective for managing departures where there is a risk of dispute or where the employee has significant client relationships or commercial knowledge.

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ERA 2025: Does the Employment Rights Act Change Anything?

The Employment Rights Act 2025 does not directly change gardening leave. However, two upcoming changes are worth noting:

Day one unfair dismissal rights (from 2027): With the removal of the two-year qualifying period, new employees will have unfair dismissal protection from day one. This means gardening leave decisions during probation or early employment will carry more legal weight. Ensure your notice period and gardening leave arrangements are properly documented from the start.

Enhanced day one rights (from April 2026): The expansion of day one rights to paternity, parental, and adoption leave does not directly affect gardening leave. But the general direction of ERA 2025 (stronger employee protections, earlier rights, more scrutiny of employer conduct) reinforces the importance of having robust contract clauses in place before you need them.

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FAQ: Gardening Leave UK

Q: Can I put an employee on gardening leave without a clause in their contract?

A: Only if the employee agrees to it. Without an express contractual clause or the employee's consent, placing them on gardening leave is a potential breach of contract. The employee could argue they have an implied right to work, particularly if they hold a senior or skilled role. Always include a gardening leave clause in your standard employment contracts.

Q: Do I have to pay full salary during gardening leave?

A: Yes. The employee remains employed and is entitled to their full contractual pay and benefits throughout the gardening leave period. This includes basic salary, pension contributions, health cover, car allowance, and any other contractual benefits. Stopping or reducing pay during gardening leave is a breach of contract.

Q: Can the employee work for someone else while on gardening leave?

A: Not if your gardening leave clause (or contract more broadly) prohibits it. Most gardening leave clauses include a restriction on working for any other employer without your written consent. If there is no such restriction, the employee's general duty of good faith may still prevent them from working for a competitor, but this is less certain. An express prohibition is always better.

Q: Does time spent on gardening leave count toward a non-compete period?

A: Courts have often taken the view that gardening leave reduces the effective period of post-termination restrictive covenants. If your employee has a six-month non-compete and spends three months on gardening leave, a court may consider that only three months of the non-compete remains enforceable after termination. Factor this into your decisions about gardening leave duration and covenant length.

Q: Can I require the employee to take holiday during gardening leave?

A: Yes, provided your contract or gardening leave clause expressly permits it. You must give the employee notice to take holiday equal to twice the length of the holiday period (so two days' notice for one day's holiday). Without an express contractual right, you cannot simply deduct accrued holiday from the gardening leave period.

Q: What happens if the employee breaches gardening leave terms?

A: If the employee breaches their obligations during gardening leave (for example, by contacting clients, taking confidential documents, or starting work with a competitor), you can take action for breach of contract. This may include seeking an injunction to prevent further breach, and in serious cases, treating the breach as grounds for summary dismissal. Document everything and take legal advice before acting.

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Get Your Employment Contract Checked

Does your employment contract include a properly drafted gardening leave clause? The EmployerKit Audit checks your contracts for completeness and ERA 2025 compliance. From £49. Visit employerkit.com/tools/employerkit-audit.

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Last updated: April 2026