Garden leave, also called gardening leave, is when your employer asks you not to come into work, or to work at home or another location, during your notice period. You are still employed, and you get the same pay and contractual benefits. This guide covers pay, starting a new job and restrictive covenants.
Key points
✓On garden leave you are paid as usual for your notice period, including for any work benefits in your contract, and you are still employed.
✓Whether you can be required to stay on garden leave can depend on your contract. If it is not in your contract, you need to agree.
✓If you resign, you can ask to be put on garden leave, but your employer does not have to agree to your request.
✓Restrictive covenants are terms in your contract that restrict what you can do during or after your notice period, and your employer could take you to court if you breach them.
✓An employer will not usually be able to enforce restrictive covenants unless they are clear, specific and time-restricted.
What is garden leave?
Garden leave is when an employer tells an employee not to work either part or all of their notice period. This could be because the employer does not want the employee to have access to sensitive or confidential information they could use in a new job. The employee is still employed during garden leave, even though they are not working.
You are still employed during garden leave, even though you are not working
You are paid as usual during your notice period, including for any work benefits in your contract
Your employer may ask you to work at home or another location instead of coming into work
If garden leave is not in your contract, you need to agree to it
This guidance is about people with the legal status of employee. Acas says someone is not likely to be an employee if they are an agency worker, a casual worker or on a zero-hours contract.
What are you entitled to during garden leave?
On garden leave you must get paid as usual during your notice period, including for any work benefits in your contract. The points below come from GOV.UK, Acas and the Employment Rights Act 1996, and they cover bonuses, holiday and redundancy pay.
✓Yes: You are entitled to bonuses and commission during your notice period unless your contract states otherwise
✓Yes: During your notice period you may be able to take whatever is left of your statutory annual leave
✓Yes: When you leave, your employer must pay you for any statutory holiday you have built up but not taken
✓Yes: In a redundancy, your employer must keep paying you until the end of your notice period
✓Yes: For a redundancy payment, the relevant date for a contract ended by notice is the date the notice expires, and you need at least two years of continuous employment ending with that date
✓Yes: In a redundancy, Acas suggests asking your employer to put in writing whether you will still get contractual benefits, for example a fuel card or mobile phone, during your notice period
If you cannot resolve a dispute about notice pay with your employer informally, you can follow your company's grievance procedures. If this does not work, you may be able to make a complaint to an employment tribunal for breach of contract. Acas says that if you believe you must resign because your employer has seriously breached your employment contract, you might be able to claim constructive dismissal. See our constructive dismissal guide.
Can you start a new job during garden leave?
You are still employed during garden leave, so ask your employer before you start work elsewhere. Acas says an employee who wants to leave before the notice period ends can ask, and could be in breach of contract if they leave early without agreement. Your contract may also have restrictive covenants that restrict your actions during or after your notice period.
Ask your employer whether you can leave before your notice period ends, and get any agreement in writing
Check whether your contract includes restrictive covenants
Acas lists three things you could ask your employer: to leave without working all your notice, to be paid instead of working your notice (PILON), or to be put on garden leave
✗No: Your employer does not have to agree to your request
✗No: If you leave early without agreement, you could be in breach of contract
✗No: If you leave early, your employer only has to pay you for the time you worked
✗No: If you do not reach an agreement and do not work the appropriate notice, it might affect your final pay or references for future jobs
Acas says that if an employee is to go on a significant period of garden leave, for example several months, there are some important legal issues to consider.
Post-termination restrictive covenants
Restrictive covenants are terms in an employment contract that restrict an employee's activities after they leave, to protect the employer's business interests. Acas gives four examples.
Non-competition: preventing employees from working for a competitor or starting a competing business for a period of time, or within a certain distance
Non-disclosure: preventing employees from sharing sensitive or confidential information after they leave
Anti-poaching: preventing employees from encouraging others to leave with them
Non-solicitation: preventing former employees from trying to get the business of their previous employer's clients or customers
An employer will not usually be able to enforce restrictive covenants unless they are clear, specific and time-restricted. Even then, this area of the law can be complex.
The government's consultation on non-compete clauses says that a non-compete clause will only be reasonable and enforceable if it protects a legitimate business interest of the ex-employer and is no wider than reasonably necessary to protect that interest. It says the onus of proving reasonableness is on the employer. The consultation covered England, Wales and Scotland only, because employment law is devolved to Northern Ireland. The consultation also notes that some employers use gardening leave in conjunction with a non-compete clause.
Your company could take you to court if you breach the restrictive covenants in your contract. If you have questions, you can contact the Acas helpline.
Garden leave vs payment in lieu of notice (PILON)
Garden leave and PILON (payment in lieu of notice) are different. On garden leave you are still employed and paid as usual for your notice period. With PILON you stop working straight away and the contract ends straight away.
Garden Leave
You are still employed during your notice period. You are paid as usual, including for any work benefits in your contract.
Payment in Lieu of Notice (PILON)
You stop working straight away and the contract ends straight away. The employer must give you full pay for your notice period, but it is unlikely they will have to provide other contractual benefits.
Since 6 April 2018, post-employment notice pay is taxed as general earnings and does not benefit from the £30,000 termination payment threshold, whether or not the employee gets a contractual PILON. See is redundancy pay taxable.
You can only get payment in lieu if it is in your contract or you agree to it. If you do not agree to it, you can work out your notice period. Acas says the employer cannot force an employee to agree to payment in lieu if it is not in their contract.
Can you be refused garden leave?
Yes. If you resign and ask to be put on garden leave, your employer does not have to agree to your request. Whether you can be required to stay on garden leave can depend on your contract, and if it is not in the contract you need to agree.
✓Yes: You can ask your employer whether you can be put on garden leave
✓Yes: If garden leave is not in your contract, you need to agree to it
✗No: Your employer does not have to agree to your request
Can I work for a new employer during garden leave?
Ask your employer first. You are still employed during garden leave, and Acas says an employee who leaves before the notice period ends without agreement could be in breach of contract. Check your contract for restrictive covenants, which can restrict your actions during or after your notice period. Your employer does not have to agree to an early release.
Does garden leave count toward restrictive covenants?
Check your contract. Acas describes restrictive covenants as terms restricting your actions during or after your notice period, and says an employer will not usually be able to enforce them unless they are clear, specific and time-restricted. The government's consultation on non-compete clauses notes that some employers use gardening leave in conjunction with a non-compete clause.
What is the difference between garden leave and PILON?
On garden leave you are still employed and paid as usual for your notice period. With payment in lieu of notice (PILON) you stop working straight away, the contract ends straight away and the employer must give you full pay for your notice period. Acas says the employer cannot force an employee to agree to PILON if it is not in their contract.
Can I be put on garden leave during redundancy?
Garden leave is about the notice period, and in a redundancy your employer must keep paying you until the end of your notice period. Whether you can be required to stay on garden leave can depend on your contract, and if it is not in the contract you need to agree. For a redundancy payment, the relevant date is the date your notice expires, and you need at least two years of continuous employment ending with that date.
Can you request garden leave?
You can ask your employer whether you can be put on garden leave, but your employer does not have to agree to your request. This is in the Acas guidance for people who are resigning.
Should I get legal advice about garden leave from a solicitor or employment lawyer?
Acas says that if an employee is to go on a significant period of garden leave, for example several months, there are some important legal issues to consider. If you have questions about your own situation, you can contact the Acas helpline.
Know Your Rights UK. "Garden Leave: What It Is and Your Rights During Notice." Know Your Rights UK, https://www.knowyourrightsuk.com/employment/garden-leave