As part of our continuing ‘How to be a Good Leaver’ series of articles, we asked leading human resources lawyer, David Hunt, a partner at Farrer & Co, to give his advice to employees about what you are, and more importantly are NOT allowed to do during your gardening leave. This is the third in a series of four articles.
In this guide, David starts at the point of your resignation landing on your boss’s desk, mapping out the likely sequence of events, including your notice period, managing a handover with colleagues and whether you work out your notice or start your gardening leave.
Part 3 – Notice Period & Gardening Leave
Typically following initial communication of resignation there is a short period of inactivity whilst the news is digested, followed by a charm offensive to see if you will change your mind, followed by a hardening of approach if it becomes clear you will not.
At this stage your firm will be focusing on your notice period and whether to ask you (a) to work it out as normal (b) to undertake non-client project work (c) to go home on gardening leave or (d) to agree to a shortened notice period. Of these options (a) is perhaps the least likely and (d) is of course the desired outcome. Both (b) and (c) in legal terms may be dependent to some extent on what your contract provides in this respect.
The key point is never to agree on the spot to project work, garden leave etc. Play for time. Say you would like to consider the proposal and revert once you have done so. In the interim take legal advice. Any proposal may cut across your own legal rights. Furthermore, there may be other elements, such as rate of remuneration and leaving date on which ideally you would want to have reached agreement at the same time.
In a lot of cases, the most likely outcome is that you will be asked to carry out a handover of your clients over a short period of time followed by a period of gardening leave. During any period when you are working your notice or on gardening leave you remain an employee of your employer and the duties of confidentiality and fidelity, and any additional contractual terms, remain in force.
In simple terms this means you cannot do anything for your new employer during the notice/garden leave period which would be interpreted as a form of work or business. Work or business does not simply mean client work, but extends to all the other things which a person of your level might ordinarily be expected to do by way of work (eg marketing, recruitment, developing business strategy).
Whilst on Gardening Leave, You Can…
- Meet socially with your new colleagues outside of working hours.
- Meet socially outside of working hours with those of your existing employer’s staff or clients with whom you would genuinely be able to say you were personal friends. The law does not normally prevent ordinary social interaction between friends, no matter what their jobs are.
But, You Can’t…
- Disclose, copy or memorise trade secrets or confidential information, and in particular, be careful to avoid sending electronic documents from your work to home e-mail account.
- Meet with future colleagues during working hours.
- Meet with future colleagues at any time for the purpose of business planning (this would include attending employee conferences or such like).
- Become involved (whether with the new employer or with head hunters working with the new employer) with the recruitment, selection or interviewing of prospective employees for the new employer.
- Meet/network with existing or prospective clients of the new employer; or
- Solicit or facilitate any of your existing employer’s clients to move to the new employer.
- Solicit or facilitate any of your existing employer’s employees to move to the new employer.
You can certainly expect during your notice/gardening leave period to be approached by colleagues or clients expressing an interest in following you to your new employer. Care is needed in how you respond to these approaches. The textbook response is that you would like to remain in touch but that for the time being you remain an employee of your current firm and you cannot do or be seen to be doing anything which would not be in that firm’s best interests. If the relevant colleague or client wishes to speak to the new employer direct they are obviously free to do so but you cannot suggest or facilitate that.
We hope that this has been a useful summary. In the next article, we will be looking at joining your new employer – and advise on what you are and are not allowed to do once you have joined them.