Garden Leave - Notice Periods

Exodi

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.

But then what's to stop everyone joining a company, leaving to join a competitor (which usually prompts employers to offer gardening leave), and dictating their leaving date in several millennia under the proviso that any reduction in this term is unfair dismissal.

I absolutely think the ACAS has been ill-informed by the OP or the advisor should be sectioned.

EDIT:

KatrinaWaves wrote: »

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?

Seems KatrinaWaves beat me to it!

LawAbiding

Found this:

Overview
Dismissal is when your employer ends your employment - they don’t always have to give you notice.

If you’re dismissed, your employer must show they’ve:

a valid reason that they can justify
acted reasonably in the circumstances
They must also:

be consistent - eg not dismiss you for doing something that they let other employees do
have investigated the situation fully before dismissing you - eg if a complaint was made about you


One comment I can add, they have not been consistent as a colleague went to the same competitor be it a different discipline, and was not put on Garden Leave....

getmore4less

Easy to justify a fair dismissal using SOSR.

Exodi

LawAbiding wrote: »

One comment I can add, they have not been consistent as a colleague went to the same competitor be it a different discipline, and was not put on Garden Leave....

Whilst most people would praising the high heavens that they managed to get 4 weeks off paid whilst one of their colleagues had to work it, you've instead started seeing money signs...

KatrinaWaves

LawAbiding wrote: »

Found this:

Overview
Dismissal is when your employer ends your employment - they don’t always have to give you notice.

If you’re dismissed, your employer must show they’ve:

a valid reason that they can justify
acted reasonably in the circumstances
They must also:

be consistent - eg not dismiss you for doing something that they let other employees do
have investigated the situation fully before dismissing you - eg if a complaint was made about you


One comment I can add, they have not been consistent as a colleague went to the same competitor be it a different discipline, and was not put on Garden Leave....

The different discipline may have made a difference. But you are not questioning the garden leave, you are questioning the length of notice.

I would hesitate to say the company have acted unreasonably, as they are protecting their interests and there is a valid reason.

System

KatrinaWaves wrote: »

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?

Exactly. Couldn't have put it better.


AND



Need I remind you. Based on your calculations, you're being paid 3.4K for doing nothing...!! Suck it up.

Crazy_Jamie

KatrinaWaves wrote: »

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?

Well, given that we've both gone with increasingly extreme examples let's just break down the issue. There are two questions that lead us to the answer here, and I'm happy to use your example to give it context. Let's say in your situation you give 6 months notice, and the company responds by putting you on garden leave for 4 weeks (your contractual minimum) and bringing the contract to an end after those four weeks.

First question, is that a dismissal on the part of the employer? I struggle to see how it isn't, but as I've said, feel free to tell me why you think it is if you disagree.

Second question. If it is a dismissal, is there a fair reason for it? It doesn't fall into one of the standard fair reasons, so you'd be left with Some Other Substantial Reason, which would be... protecting confidential information and/or mitigating the risk that an employee would take or misuse that information? Given that the contract will presumably already contain restrictive covenants, and that there are certain duties that will apply in any event in that respect post employment, I struggle to see how you'd get anywhere close to convincing a Tribunal that a dismissal on that basis would be fair. I've certainly never heard of anything like that. But again, I'm happy to hear your reasoning if you disagree.

LawAbiding

Just to make it clear

I cannot afford the 2 weeks unpaid, and more than happy to work the full 6 weeks notice. Part of me thought they may not put me on Garden leave as they didn't for the colleague, so I put 6 weeks notice in.

But it looks like, I have no choice....

Undervalued

LawAbiding wrote: »

Found this:

Overview
Dismissal is when your employer ends your employment - they don’t always have to give you notice.

If you’re dismissed, your employer must show they’ve:

a valid reason that they can justify
acted reasonably in the circumstances
They must also:

be consistent - eg not dismiss you for doing something that they let other employees do
have investigated the situation fully before dismissing you - eg if a complaint was made about you


One comment I can add, they have not been consistent as a colleague went to the same competitor be it a different discipline, and was not put on Garden Leave....

Your "found this" is a bit simplistic to say the least. In any case it is only relevant if you have been employed for two years or more. Apologies if I missed the answer but exactly how long have you worked there?

Regarding the final paragraph and not withstanding your "found this" quote, I can see no legal reason why that matters. Garden leave is not a right, it is something the employer can use at their discretion.

As I said earlier I agree there is a reasonable chance you have a claim for the two weeks but I have to wonder if it is a wise thing to do.

Finally, just to add, once the four weeks garden leave come to an end you are free to do some other work for the two weeks before your new job starts or even claim unemployment benefit! If you did make a successful claim you would be expected to have done all your reasonably could to minimise your losses!

Crazy_Jamie

getmore4less wrote: »

Easy to justify a fair dismissal using SOSR.

I do think this is what it comes down to, which begs the question, how? I don't see it personally. Of course if someone can actually find a case on this, all the better.