HR tip: Garden leave

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These questions are being answered by Learn HR, a market leader in the provision of HR and payroll training and nationally-recognised professional qualifications.

Question:"A key employee has just put in her three months' notice to go and work for an important competitor. Her manager wants her off the site right away with pay in lieu of notice. Can we do this?"

HR Tip: Faced with an employee leaving to join a competitor you have three options. First keep her in employment doing work that is within her contract, but in such a way that she cannot acquire new information that she might knowingly or unknowingly use to the benefit of the new employer. This may not be practicable but it is worth a try since you would be able to monitor closely what she gets up to.

Second do as her manager suggests. But if you dismiss her immediately with pay in lieu of notice she could become useful to your competitor tomorrow.

Third put her on what is known as "garden leave". Continue to pay her and allow her all the other benefits of her employment contract, but require her to stay at home and on call to you during working hours. She will be out of the way but not free to join another employer while she is still under contract to you.

You might consider identifying certain key employees and put them under restrictive covenants that would restrict to a reasonable degree their freedom to join a competitor. You would need to have a solicitor draft suitable documentation.

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