When terminating employees who may pose a competitive risk to the business, it is always comforting to have the option of requesting that they go home, dust off their deck chair and sit in the garden for the period of their notice - otherwise known as 'garden leave'. However, what happens if the contract of employment contains no express garden leave clause? Can you still insist on their enforced absence? The case of Christie v. Johnston Carmichael suggests that, in certain circumstances, garden leave may still be an option.

Mr Christie worked for a firm of accountants as a senior client relationship manager. A dispute arose following a proposal to move Christie to a different office. This issue was not resolved and Christie resigned and claimed constructive dismissal. In his letter of resignation he gave three months' notice of termination of his employment.

Johnston Carmichael responded to Christie's letter saying that he would not be required to work his notice period but would be placed on garden leave. They did this despite there being no express contractual right to do so. Christie argued that this step was a breach of contract as he had a right to work during this period and he would be "de-skilled" if he did not (although presumably his gardening skills would improve - this point, (un-)surprisingly, was not made).

The EAT considered the extent to which an employee's right to work "trumps" a garden leave clause. It said that in Christie's case, the contract of employment could not be read as giving him the right to work. His duties were not unique, it was a job carried out by a number of other employees and was one which could be carried out without formal accountancy qualifications. There was also no evidence that he would become de-skilled during the garden leave period, since, for example, he could have carried out private studies to keep himself up to date. Johnston Carmichael was therefore entitled to put him on garden leave, although giving him a copy of Alan Titchmarsh's latest work would have been a step too far - in any circumstances.

The case is helpful therefore if the situation arises where there is a risk that a departing employee will pose a post-termination threat but there is no express right to put them on garden leave. However, if the EAT had found that Christie's role was unique or that he would be de-skilled during the garden leave period then the employer would have breached his contract by acting in the manner that they did. It is therefore always recommended to ensure that express garden leave clauses are included in the contract, particularly for more senior employees. Giving garden related gifts at the same time as exercising this right is never recommended.