Elsevier Limited v Munro [2014] EWHC 2648

The High Court has set out some helpful guidelines as to what an employer can expect when a senior employee resigns on notice but wants to leave early. Looking at notice periods and garden leave, it considers the potential conflict between the public interest in having employees abide by their contracts and the public policy considerations of restraint of trade.

The points to take from the case are as follows:

  • The employee cannot be compelled to carry out work. (We also have last month’s case of Sunrise Brokers LLP v Michael William Rogers[2014] EWHC 2633 reminding us that in such a situation the employee who chooses not to work need not be paid).
  • The employer who asks the employee to continue to carry out their duties (as opposed to placing them on garden leave) will be looked upon favourably by the court. The employee cannot 'complain of idleness' and will be 'absent by choice and without leave'. The court is more likely to grant an injunction enforcing the whole period of notice.
  • Where the employer chooses to rely upon the garden leave provisions, it is in effect enforcing the employee to 'be idle' and public policy comes into play. It is in the discretion of the court as to how long, if at all, the garden leave should be enforced:
    • If the employee seeks to leave prior to the end of the notice period so as to join a competitor, or if the employee may misuse confidential information, then an injunction will be granted to enforce the whole period of garden leave.
    • If the employee seeks to leave early to join a business that is not in competition with the employer, despite the employee’s breach of contract, they will not be injuncted from leaving (but could be sued for any loss caused to the employer).