What is garden leave?
Garden leave is a period during which an employee remains employed and continues to receive remuneration, but is instructed not to perform work or attend the workplace. It is most commonly used after a notice of termination has been given, particularly where the employee has access to confidential information, key clients, business plans or commercially sensitive data.
During garden leave, the employment relationship usually continues in full. The employee remains bound by duties arising from the employment contract and applicable law, including duties of loyalty, confidentiality and cooperation with the employer. At the same time, the employer may restrict access to company systems, customers, colleagues, files and internal communications. The employee may be expected to remain available to the extent provided for by the agreement or lawful instruction.
The term “garden leave” originates from common law practice and is frequently used in the United Kingdom and international employment documentation. Polish labour law does not use this term as a separate statutory institution. However, a similar practical effect may be achieved through an employer’s release of an employee from the obligation to perform work during the notice period, subject to the rules of the Polish Labour Code and the terms of the employment relationship.
How does garden leave work in practice?
Garden leave is generally introduced when an employer wishes to protect its legitimate interests while allowing the employment relationship to end in an orderly manner. It may be relevant where an employee is moving to a competitor, holds a senior management position, works in sales, has access to trade secrets or is involved in strategic projects, negotiations or product development.
In practice, the arrangement may include an instruction not to attend the office, return company property, stop using company IT systems and refrain from contacting customers, suppliers or employees without approval. The employer may also require the employee to remain reachable during business hours and comply with continuing confidentiality obligations.
Garden leave should not be confused with a post-employment non-compete clause. Garden leave applies while the employment contract is still in force. A non-compete obligation after termination applies after the employment relationship has ended and, under Polish law, requires a separate written agreement and compensation for the former employee. The two mechanisms may be used together, but they serve different purposes and must be drafted consistently.
Whether an employer may place an employee on garden leave depends on the governing law, the employment contract, internal regulations and the circumstances of the case. In Poland, an employer may release an employee from the obligation to perform work during the notice period. As a rule, the employee retains the right to remuneration calculated according to the rules applicable to such release. The employer should ensure that the decision is properly communicated and does not unlawfully alter essential employment conditions.
When is legal advice on garden leave useful?
Legal advice may be needed before introducing garden leave, especially where the employee is a management board member, director, key account manager, specialist or person with access to trade secrets. The legal position may differ depending on whether the person is employed under an employment contract, engaged under a management contract, performs services on a B2B basis or holds a corporate office.
Employees may also need advice where garden leave restricts their ability to start new employment, conduct business activity or communicate with clients. It is important to assess whether the employer’s instruction is lawful, whether remuneration remains payable and whether the employee may be required to use outstanding holiday leave during the notice period.
For businesses, timely legal assessment can help prevent defective termination procedures, disputes over remuneration, allegations of unlawful restrictions on work, misuse of confidential information and loss of key customer relationships. For employees, an early consultation may clarify continuing obligations and reduce the risk of breaching confidentiality, non-compete or loyalty duties.
Legal support regarding garden leave
Support from a law firm in matters concerning garden leave may include in particular:
- reviewing employment contracts, management contracts and B2B agreements;
- assessing whether an employee may be released from the obligation to perform work;
- preparing notices and internal communications concerning garden leave;
- drafting or reviewing confidentiality, non-compete and non-solicitation clauses;
- advising on remuneration, holiday leave and access to company assets during the notice period;
- protecting trade secrets, customer relationships and sensitive business information;
- representing employers or employees in employment-related disputes.
Need legal assistance with garden leave? Contact us.