Garden Leave - Notice Periods

sparkermarketing

LawAbiding wrote: »

Yep a competitor, who I have approached again this morning and are unable to move it earlier due to holidays booked by the managers who will be inducting me.

If you could choose how long you got paid for, you would take 3 months notice! Lol

I never choose to be put on Garden Leave, and even offered upto the point of handing over my laptop to continue working. Now it seems I will be out of pocket by 2 weeks pay.

They are not going to budge on this, so I would just forget about it, learn from your mistake and enjoy the 6 weeks off work (4 of which you are being paid for).

You will get paid a few extra holiday days owed, so really you are only 6/7 days without being paid.

KatrinaWaves

sparkermarketing wrote: »

They are not going to budge on this, so I would just forget about it, learn from your mistake and enjoy the 6 weeks off work (4 of which you are being paid for).

You will get paid a few extra holiday days owed, so really you are only 6/7 days without being paid.

Unless the contract states the AL forms part of the gardening leave...

Crazy_Jamie

To my mind this is a dismissal by the employer and I am struggling to come up with a reason legally why it is not. There has been talk in this thread of the employer being able to put forward 'counter notice', or 'sticking to the contractual requirement', which is right, but I don't see how the employer can do that without dismissing the employee. If I'm right about that, the dismissal would be unfair unless the employer can come up with a fair reason, and we certainly haven't heard anything in this thread in terms of the employer's reasoning that would amount to a fair reason.

Just to illustrate this, let's change the timescales a little. Say the notice period is four weeks as it is here, but an employee gives three months' notice that they will be leaving their employment. If the employer responds to that by putting them on garden leave for four weeks before the contract comes to an end, does anyone think that that is anything other than a dismissal? I can't see how it wouldn't be, and if I'm right about that the same logic must apply here.

For completeness, assuming the OP has been employed for a sufficient period (I'm always wary of people who say they've been employed for two years; you never know if it's slightly more or slightly less than that) the damages would of course be limited to the two weeks' additional pay plus a very limited basic award. Whether or not the OP considers that to be practically worth it is another thing; as has already been said, it may be worth just asking the new employer if they can start earlier. As ever, just because someone may have a valid claim it doesn't mean that that route is free of risk or that it is worth the time and resources to pursue that option.

LawAbiding

KatrinaWaves wrote: »

Unless the contract states the AL forms part of the gardening leave...

Contract does not state AL will be part of the Garden Leave, just states I will receive normal pay and benefits.

LawAbiding

Crazy_Jamie wrote: »

To my mind this is a dismissal by the employer and I am struggling to come up with a reason legally why it is not. There has been talk in this thread of the employer being able to put forward 'counter notice', or 'sticking to the contractual requirement', which is right, but I don't see how the employer can do that without dismissing the employee. If I'm right about that, the dismissal would be unfair unless the employer can come up with a fair reason, and we certainly haven't heard anything in this thread in terms of the employer's reasoning that would amount to a fair reason.

Just to illustrate this, let's change the timescales a little. Say the notice period is four weeks as it is here, but an employee gives three months' notice that they will be leaving their employment. If the employer responds to that by putting them on garden leave for four weeks before the contract comes to an end, does anyone think that that is anything other than a dismissal? I can't see how it wouldn't be, and if I'm right about that the same logic must apply here.

For completeness, assuming the OP has been employed for a sufficient period (I'm always wary of people who say they've been employed for two years; you never know if it's slightly more or slightly less than that) the damages would of course be limited to the two weeks' additional pay plus a very limited basic award. Whether or not the OP considers that to be practically worth it is another thing; as has already been said, it may be worth just asking the new employer if they can start earlier.

Hi Jamie,

Thanks for your detailed response.

Just for your information, I have been employed by them for 2 years and 3 months.

The reasoning behind the 4 weeks counter notice is direct back to the contract which states the employer can provide 4 weeks to terminate. It doesn't go into detail on how they can do this.

i would like to copy and paste the terms in the contract, but am afraid it may be linked back to the Company.

LawAbiding

Also to add, I would loose out on approx. 1.7k for 2 weeks unpaid. It was a significant role hence the Garden leave.

Undervalued

andydownes123 wrote: »

6 weeks off, 4 on full pay. You've struck the jackpot there!

I largely agree.

Yes, I think there is an argument that the OP is entitled to be paid until the end of the six weeks notice he has given. However, the employer could of course insist he works for the whole period (less any holiday owing). They could also insist when he takes the holiday, perhaps at one day a week, which would significantly reduce the benefit. They could also require him to do some mindless boring jobs during the notice period and make the whole experience pretty miserable.

It is also possible the new job may not work out as well as hoped and he needs to use the current firm as a reference again in the near future.

You do need to consider real world factors before insisting on your rights.

Crazy_Jamie

LawAbiding wrote: »

Hi Jamie,

Thanks for your detailed response.

Just for your information, I have been employed by them for 2 years and 3 months.

The reasoning behind the 4 weeks counter notice is direct back to the contract which states the employer can provide 4 weeks to terminate. It doesn't go into detail on how they can do this.

i would like to copy and paste the terms in the contract, but am afraid it may be linked back to the Company.

It would not be advisable to copy and paste the terms of the contract. Notwithstanding that you are seeking advice in this situation, it's still a good idea to remain as anonymous as you can.

In any event, I don't think that copy and pasting the contract would resolve this, because it is a discrete legal point. It's clear that they've put you on garden leave for four weeks because that is the minimum period of notice under the contract. The question, if that action causes your contract to come to an end sooner than it would have based on the notice that you gave, is that legally a dismissal. As I've already said, I can't see why it isn't, but I am more than happy for others to weigh in and tell me why I'm wrong.

Undervalued wrote:

Yes, I think there is an argument that the OP is entitled to be paid until the end of the six weeks notice he has given. However, the employer could of course insist he works for the whole period (less any holiday owing). They could also insist when he takes the holiday, perhaps at one day a week, which would significantly reduce the benefit. They could also require him to do some mindless boring jobs during the notice period and make the whole experience pretty miserable.

It is also possible the new job may not work out as well as hoped and he needs to use the current firm as a reference again in the near future.

You do need to consider real world factors before insisting on your rights.

As usual, this is all correct. And even though I mentioned it in my first post, it is worth reiterating that even if I am right about the legal issue of whether or not there was a dismissal, that doesn't mean in any way that pursuing a legal claim is the best way to go about resolving this.

KatrinaWaves

Crazy_Jamie wrote: »

To my mind this is a dismissal by the employer and I am struggling to come up with a reason legally why it is not. There has been talk in this thread of the employer being able to put forward 'counter notice', or 'sticking to the contractual requirement', which is right, but I don't see how the employer can do that without dismissing the employee. If I'm right about that, the dismissal would be unfair unless the employer can come up with a fair reason, and we certainly haven't heard anything in this thread in terms of the employer's reasoning that would amount to a fair reason.

Just to illustrate this, let's change the timescales a little. Say the notice period is four weeks as it is here, but an employee gives three months' notice that they will be leaving their employment. If the employer responds to that by putting them on garden leave for four weeks before the contract comes to an end, does anyone think that that is anything other than a dismissal? I can't see how it wouldn't be, and if I'm right about that the same logic must apply here.

For completeness, assuming the OP has been employed for a sufficient period (I'm always wary of people who say they've been employed for two years; you never know if it's slightly more or slightly less than that) the damages would of course be limited to the two weeks' additional pay plus a very limited basic award. Whether or not the OP considers that to be practically worth it is another thing; as has already been said, it may be worth just asking the new employer if they can start earlier. As ever, just because someone may have a valid claim it doesn't mean that that route is free of risk or that it is worth the time and resources to pursue that option.

Okay lets make the example a little more extreme.

My company puts leavers on garden leave due to the potential info they could take from the company. I have a new job starting in July and I give 6 months notice.

You think the company has to pay me 6 months gardening leave and they cannot dismiss me because it would be unfair dismissal?

LawAbiding

Undervalued wrote: »

I largely agree.

Yes, I think there is an argument that the OP is entitled to be paid until the end of the six weeks notice he has given. However, the employer could of course insist he works for the whole period (less any holiday owing). They could also insist when he takes the holiday, perhaps at one day a week, which would significantly reduce the benefit. They could also require him to do some mindless boring jobs during the notice period and make the whole experience pretty miserable.

It is also possible the new job may not work out as well as hoped and he needs to use the current firm as a reference again in the near future.

You do need to consider real world factors before insisting on your rights.

Agreed, many people would see being off work for 4 weeks paid as a bonus, however as I cannot afford the 2 weeks unpaid, I would prefer to work the full 6 weeks!

But I take on board your other points, so thank you