What entitlement is there to statutory payments when on garden leave?Posted in : Seamus Says - Employment Law Discussion on 1 June 2018
If an employee is on garden leave after resignation, so they have resigned and they are on garden leave as opposed to dismissed on garden leave, do we have to pay them for any statutory and/or public holidays accrued during the notice period? Do they get any additional pay at the end of their garden leave?
Seamus: Two aspects we need to look at here. I supposed one is that we have the statutory process and we have also what the contract says itself. They would be entitled to all the usual statutory entitlements while they're on a period of garden leave.
Scott: Now, if they have resigned, the statutory period is only one week. If they've been dismissed, it could be up to 12 weeks.
Seamus: Absolutely, yeah.
Scott: But they could have a contractual requirement, and if it's garden leave and they've resigned, you would imagine it's going to be a contractual period, so they'll get all their contractual entitlements. It's probably three months or six months or something like that.
Seamus: Yes. And they're entitled to all of that. I suppose during any period of garden leave there'll be a specific reason as to why the employer has placed that employee on garden leave and it's really about writing to the employee and setting all that out and detailing it to them. Also, within the contract, there may well be a right for the employer to insist upon the employee using their holidays during that period of garden leave so there isn't a build-up of another payment at the end of it. So, it's worthwhile to come back and check it in the contract or if your contract doesn't say that, maybe thinking about a revision in terms of it.
Scott: Again, we've covered it before I think when we were looking at people where there was restrictive covenants in what people get, but certainly under the contract you're entitled to everything under the contract. If you're on statutory notice periods, effectively you're protected whether you're on holiday or whether you're on layoff and such like, you get full pay throughout the period. You don't necessarily get full pay during garden leave under the contract if the contract doesn't allow for it.
Seamus: Exactly, yeah.
Scott: But that's because you get a longer period than statute allows. But you're entitled to all your contractual entitlements.
Seamus: Yes. That's it in a nutshell.
Scott: It could well be the case that you end up with extra pay at the end because you haven't heard all this.
Helen O'Brien discusses garden leave, how it can be enforced and an employee's rights during garden leave.
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