Can I start another role while on garden leave?

If your employment is due to end soon and you are currently serving notice, you may have been placed on garden leave by your employer. This can feel like a strange limbo period where you are still employed and being paid, but you are not working. A common question we hear from employees is “Can I start another job in the meantime?”

In this blog post, we discuss what employees need to know about garden leave and starting new employment.

What is “garden leave”?

Garden leave usually applies during an employee’s notice period. During this time, an employer can require an employee not to attend work or carry out their usual duties, but will continue to pay their usual salary and benefits.

There are various reasons why an employer may do this. Examples could be to protect confidential information, or prevent employees from contacting the company’s clients or colleagues. Usually this is to reduce the likelihood of the employee joining a competitor immediately after their employment with their current employer ends.

The employee remains fully employed and bound by their contract during this time. If you are an employee on garden leave, it’s important to remember this when considering your next step.

Garden leave provisions in settlement agreements

Garden leave often arises in the context of settlement agreements. If an employee has been issued with a settlement agreement, they may be placed on garden leave until their last day of work. The terms of the agreement should be clear about any garden leave period and what is required of the employee during this time. Our team regularly advises employees on settlement agreements and can help employees understand the practical effect of any garden leave clauses. If you have recently been issued with a settlement agreement, head to the settlement agreement section of our website for more information.

Can you work elsewhere during garden leave?

Most of the time, an employee’s contract will expressly prohibit working for another employer during the employee’s notice period. This includes during any period of garden leave.

Since an employee is still employed during garden leave, taking another job during this time might constitute a breach of contract, and an employer could pursue proceedings against an employee for any damages they suffer as a result.

Duty of trust and confidence

If the employment contract is silent on this issue, this doesn’t mean that an employee has the all clear to start working for another employer. There is an implied duty of trust and confidence embedded in every contract of employment. It obliges both employers and employees not to act in a manner that is likely to destroy or seriously damage the relationship of trust and confidence between them without reasonable and proper cause. The duty requires employees to act in good faith and not undermine the employer’s interests. Starting another role while still employed, even if there is no express clause in the contract, could therefore be seen as a breach of the implied duty of trust and confidence.

Are there any situations where you can take another job?

A period of garden leave can be a great opportunity for an employee to search for a new role to move onto. Sometimes, the situation can arise where an employee secures a new role, and the new employer wants them to start as soon as possible. In situations like this, an employer may agree to release an employee from their contract early. This is not a guarantee though, it’s at the employer’s discretion. An employee should make sure they have express agreement before starting any new role.

Obligations during garden leave

While it can be great as an employee to have a period of downtime while still getting paid for it, employees still have various obligations that they must comply with during the garden leave period. These include remaining contactable by their employer during garden leave and, unsurprisingly, not divulging any of the employer’s confidential information during this time (or at any time after their employment ends). Employers can still assign work during garden leave, so employees must comply with instructions if given by their employer.

Need advice?

If you are on garden leave and considering a new role, taking early advice can make all the difference. If you’d like clear, practical advice tailored to your situation, our employment law team in Edinburgh can help.