Garden Leave - Notice Periods

LawAbiding

Undervalued wrote: »

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.

I am sorry if I am cluctching at straws here, I just have the thought of trying to juggle everything with less pay then I would have if I had no breaks in employment.

And you right, thats directly for Dismissal nothing to do with my garden leave or notice. Sorry

LawAbiding

Crazy_Jamie wrote: »

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.

I can confirm the contract does state the position Post-Employement and makes it quite clear what cannot be shared etc.

Undervalued

LawAbiding wrote: »

I am sorry if I am cluctching at straws here, I just have the thought of trying to juggle everything with less pay then I would have if I had no breaks in employment.

And you right, thats directly for Dismissal nothing to do with my garden leave or notice. Sorry

Indeed.

I have added a final paragraph to the post you have quoted, which probably crossed with your reply so here it is again.....

.....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 you reasonably could to minimise your losses!


And again....

Are you sure you have at least two years employment? (Technically 1 year and 51 weeks plus a week's statutory notice)? If not this is all moot!

Edit - just spotted your answer to this on the previous page, 2 years three months so no problem on that score.

Crazy_Jamie

Crazy_Jamie wrote: »

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.

Just had a look myself, and I did find Willow Oak Developments v Silverwood [2006] EWCA Civ 660, where a dismissal was fair when an employee refused to sign a contract with new restrictive covenants. That was under the broad umbrella of protecting business interests. Still pretty far away from what we're talking about here though, and as I say in my experience I think you'd have significant difficulty justifying a dismissal on the basis of SOSR solely because an employee gave a longer notice period than their contractual minimum.

KatrinaWaves

Crazy_Jamie wrote: »

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.

How is it unfair? They have been reasonable and gave notice, and they have good reasons. They have no further work for him in order to protect their business because of his choice to leave. As said, SORS will easily cover this. He acknowledges his substantial role.

Basically this only boils down to the fact the OP can’t afford unpaid time off and should have given his contractual notice. He does not get to dictate he wants extra notice or leave.

getmore4less

Crazy_Jamie wrote: »

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.

Had to put them on garden leave because of a breakdown of trust as they are going to a competitor.

We have to pay them to do nothing and they are leaving anyway dismissal with notice for SOSR.

LawAbiding

From:

https://www.citizensadvice.org.uk/work/leaving-a-job/resigning/your-notice-period-when-resigning/

"You can give more notice than your contract says, if you want - your employer can’t make you leave earlier. If they do make you leave earlier, this counts as sacking you. You should check if you can claim unfair dismissal.

Your notice period starts the day after you resign. This means if you give a week’s notice on Monday your last day at work will be the next Monday."

Crazy_Jamie

getmore4less wrote: »

Had to put them on garden leave because of a breakdown of trust as they are going to a competitor.

We have to pay them to do nothing and they are leaving anyway dismissal with notice for SOSR.

I think convincing a Tribunal that there'd been a breakdown of trust solely because an employee was leaving to join a competitor would be ambitious to say the least.

KatrinaWaves wrote:

How is it unfair? They have been reasonable and gave notice, and they have good reasons. They have no further work for him in order to protect their business because of his choice to leave. As said, SORS will easily cover this. He acknowledges his substantial role.

Basically this only boils down to the fact the OP can’t afford unpaid time off and should have given his contractual notice. He does not get to dictate he wants extra notice or leave.

You'd need more than this. The OP has worked there for two years and there are restrictive covenants in place along with the general duties that I've previously referred to. Unless the company could show that there was some sort of specific risk that came with the OP working an extra two weeks I don't think you'd get close to SOSR.

For completeness, I do think the time period is relevant, as SOSR inevitably takes a range of factors into consideration. With your extreme example of 6 months vs 4 weeks, that time differential may leave the door open for an SOSR argument depending on the circumstances. But where we're talking about a difference of two weeks, I struggle to see how the employer justifies it.

All that said, I do appreciate that we're well into 'agree to disagree' territory at this stage, not least because we're into hypotheticals and the OP already has the advice that they need.

GlasweJen

OP did you actually give notice as per your contract or did you just mention to a manager that you intend to give notice?

LawAbiding

GlasweJen wrote: »

OP did you actually give notice as per your contract or did you just mention to a manager that you intend to give notice?

Notice provided in writing stating 6 weeks notice and xx/xx/xxxx being my last working day with the company.

If it was by just mention over the phone, then I would hold off until I have 4 weeks remaining, but hindsight is a great thing...