Garden Leave - The rules?

[wilksj01]

Hi,

I month ago I handed in my 1 month notice and was placed on garden leave. I was advised that I had to be available to work for the company at any point.

Whilst on garden leave I started work at my new company with a view that I would get paid twice.

My old company called the HR department of the new company and asked what my start date was and found out that I had started whilst on garden leave. They are now refusing to pay me the last months wages and commission which equates to about £4,000 stating that I was not available for work.

This is not the case as my new employer agreed that if my old company needed me to work he would make me available.

So are my old company allowed to do this even though I was available and that was the reason they gave for withholding payments?

Wilks01

[GeorgeTuk]

You're old company is right and is not required to pay you the money, you were still under contract to them and still being paid. There is no way to prove what date you started with you new company and therefore they are right to with-hold all the pay.

It is not about being 'available' it is the fact you were under contract to your old company and your terms and conditions were set and while on 'gardening leave' these still count.

You should also consider informing your nearest tax office that you at one point had two jobs so that your tax is adjusted correctly.

[TiG]

"During this period the employee continues to receive all salary and benefits but is prohibited from commencing employment with new employers until the gardening leave period has expired"

I believe that is the law.

However I certainly would raise issue with the new companies HR department giving out my Start Date to anyone, as far as i'm concerned that would be information that is not privey to anyone that just phones up and asks about it and i'd probably do my nut at the HR department, and certainly query whether that was a breach of my own DPA.

TiG

[Moby-Dick]

If you are officially on gardening leave you can't work for anyone else.

I was able to get a 2 week pay overlap when I changed jobs but that was because I had a bucketload of holiday saved.

[dave87]

As has been said above, I'd have a go at the HR dept for giving out those details.

But, that said, you technically shouldn't have started working for the new company until you'd completely finished your contract with the old company. As Moby suggested, did you have any holiday time owing? That could be your way out....

[Dareos]

If your commission was from the month before, surely you are still entitled to that.

[ikonia]

nope breach of conduct/gross missconduct.

they can kick you out on the spot with no benfits

Also unwise to have a go at new company HR - been there less than a month and already complaining and moaning, when the user is at fault here, yes HR should have potentially not given out start date info (depending on if that is their policy or not) but they may have an open info policy which allows none personal information to be disclosed, I know of lots of companies that will do things like confirm you work for them or not.

[GeorgeTuk]

nope breach of conduct/gross missconduct.

they can kick you out on the spot with no benfits

Also unwise to have a go at new company HR - been there less than a month and already complaining and moaning, when the user is at fault here, yes HR should have potentially not given out start date info (depending on if that is their policy or not) but they may have an open info policy which allows none personal information to be disclosed, I know of lots of companies that will do things like confirm you work for them or not.

Agree, you would not to do well to start at a new company and then go whining about how you screwed over your last company as don't forget they will be in charge of your career for the forseeable future.

And nobody likes a moaner!

[Dareos]

time to start stealing their client base then

[ikonia]

why ??? they have done nothing wrong- they PAID the ex-employee to sit at home and not work for another company, and the ex-employee went and worked for another company, therefore broke the agreement.

I wonder if they could actually sue wilksj01, I doubt it, but it does depend on his terms and conditions.

[TiG]

While I do strictly agree with you on the Gardening leave being a situation where you have been identified as a "security" risk and that the whole idea is that the company would rather have you not working in the building having access to company information.

The circumstances of the old company finding out the details of his new company and the starting date do not quite right to me.

Even given my stable job situation i would not be very happy for an ex employer of mine being able to phone up our HR department and find out when i started here. What right do they have to this data?. (Future employers sure but not previous)

HR departments at least in my opinion have a responsibility to not give out any information on employees unless its part of their job role. Tax/health and safety etc, i'm fairly certain whatever company policy is that the DPA overrides that and giving out information that is likely to cause distress to a person is a breach of this.

TiG

[wilksj01]

To be honest I left on really good terms and I would have happily sat at home for a month whilst being paid it was just that I wanted to start at the new company at the beginning of their new financial year.

As people have said in the posts here, it is not wise to go making trouble so soon into a new job and so I have had to be quite positive about the whole thing and make out that I was just naive rather than trying to be dodgy.

That said though, they did know that I was on garden leave for a month and they did ask me to start early.

I guess I just have to draw a line under the whole thing and take it as a lesson for the future.

[badass]

why ??? they have done nothing wrong- they PAID the ex-employee to sit at home and not work for another company, and the ex-employee went and worked for another company, therefore broke the agreement.

I wonder if they could actually sue wilksj01, I doubt it, but it does depend on his terms and conditions.

They can only sue for losses that are a result of the contraact breach. His breach has cost them nothing therefore they cannot sue him ofr any money.

[Saracen]

nope breach of conduct/gross missconduct.

they can kick you out on the spot with no benfits

And they will likely find themselves explaining why they breached employment law to a Tribunal if they do.

This is not by any means a straightforward area, wilks, and I would suggest speaking to an employment solicitor if you want to push this.

But I'd stress a couple of points :-

• with a few very overt exceptions, instant dismissal "on the spot" is a good way to get sued. Since October 2004, Employment law requires a MINIMUM of a three stage process consisting of :-
  
  - written explanation of the "offence"
  - face to face meeting about it
  - an opportunity to appeal.
  
  
• the circumstances under which an employer can make deductions from earnings, even in cases of gross misconduct, are strictly limited. The basic situation is only if :-
  
  - the provision is allowed by statute (such as taxes, court orders, etc)
  - the contract specifically permits a deduction under given circumstances and the employee either has a copy of that contract or is given it before the deduction is made
  - if the employee explicitly agrees to it in writing
  
  Anything else is entering onto dodgy ground, and the circumstances under which an employer can make deductions is defined in statute, and anything else is illegal.
  

Yes, gross misconduct can be a justification for not paying normal benefits, such as payment is lieu of notice, but if other deductions are made (such as accrued holiday entitlement) it can be a very different situation.

One thing is very clear, though - any employer seeking to dismiss an employee has to be VERY careful how they do it, and if they don't follow statutory minimum procedures AND their own internal disciplinary rules, they are VERY likely to lose any employment tribunal should it come to that.

If you want your money, wilks, talk to a properly qualified legal person. BUT ..... whether it should happen or not, consider how taking your previous employer to a tribunal may impact on your current employer, or any future employer. I know of one case where a potential employee lost a job because he mentioned he was helping his girlfriend take tribunal action against her employer. The potential employer's attitude was "why take the risk" and hired someone else.

[jasper2708]

hi i was put on leave on the 21 september 2009 and i got a letter from them stateing that my last pay would be on the 30 oct 2009 and i have found out that is has been put on hold what can i do as they havnt given me a reason for this.

GMB union told me that they have broken the law is this right and what can i do now.

thanks

[peterb]

hi i was put on leave on the 21 september 2009 and i got a letter from them stateing that my last pay would be on the 30 oct 2009 and i have found out that is has been put on hold what can i do as they havnt given me a reason for this.

GMB union told me that they have broken the law is this right and what can i do now.

thanks

Take professional legal advice. Employment law is complex, and possibly an area where you shouldn't rely on advice, given without liability, on an internet forum. (This point has been made in this thread, albeit 2 years old, but still valid)

If you are in a Trade Union, consult with your TU representative. You could also see a Citizens' Advice Bureau.