In SG & R Valuation Service Co v Boudrais & Others, somewhat unusually a court has granted an injunction to require certain employees to remain away from work for the duration of their notice period even though the contracts did not contain a right for the employer to place individuals on ‘garden leave’ during their notice.

In this case a group of senior employees decided that they would leave their employment and join a competitor. Soon after the employees gave notice, it became clear that they were removing corporate property and using corporate emails to send property and information which properly belonged to the employer, out to a prospective new employer. In addition they were encouraging other staff to leave.

The employer sent the individuals on garden leave (i.e. told them not to attend work) and then wrote confirming their suspension for the duration of the notice period.

The employees claimed that by requiring them to remain away from work (since there was no express right to place them on garden leave) the employer was in breach of contract and the employees were therefore entitled to consider themselves wrongfully dismissed and free to work for the new employer immediately. SG&R applied to the English High Court for an interim injunction to prevent the employees joining the competitor for the period of unexpired notice.

As there was no express contractual right to place the employee on garden leave, the court had to consider if such a right could be implied.

The case law on a right to place on leave is intertwined with cases on whether there is an implied “right to work”. In cases where an individual may be damaged (e.g. because of a loss of skill) if he or she does not work that may be sufficient.

In this case the facts were such that the court found a right to work but because of the employees’ own actions, they could no longer be said to be “ready” and “willing” to work particularly when there was evidence of wrongdoing and as a result the employer was granted the relief it sought.

While in this case the injunction was granted the clear lesson is that from an employer’s perspective, an express provision in an employees’ contract providing for garden leave and reserving the right to assign no or different duties for all or part of the notice period is by far the preferred route.