Although increasingly common, the term ‘gardening leave’ can still be confusing for some leaders. It can be a tricky time when employees are exiting the organisation, and it’s often unclear whether gardening leave is the right approach.
Some leaders implement gardening leave prematurely, while others overlook it when it could be the best option to safeguard the business.
Gardening leave is a unique concept that often leaves people scratching their heads. Originating from the British civil service, it refers to a scenario where an employee who is leaving a job is instructed to stay away from work during their notice period - while remaining on the payroll. The term comes from the idea that the employee, now ‘benched,’ has nothing to do but tend to their garden.
While the world has changed significantly since then, the concept and intent of gardening leave remain the same.
This practice is commonly used to prevent employees from taking sensitive information to a competitor, accessing intellectual property, contacting key clients, or causing disruption during their notice period. For this reason, gardening leave is typically applied to senior leaders, specialists, and those in roles critical to the organisation’s success. It allows businesses to protect their interests while fulfilling obligations to the employee and ensuring compliance with company policies.
Gardening leave is a strategic tool that is often either underutilised or overused. Employers are encouraged to contact Australian Industry Group for advice on when this option is most effective and aligned with legal obligations. When seeking legal advice about gardening leave, employers should consider:
When used appropriately, gardening leave can:
Given that employees are not required to perform their normal duties during this time, some may view gardening leave as a ‘free hit’ - an opportunity to catch up on hobbies, spend time with family, or binge-watch Netflix. However, others may interpret it as a sign of mistrust, potentially leading to discontent or resentment.
When an employee resigns and provides more than the minimum notice required, employers have several options. They can allow the employee to work out the notice period, pay them in lieu (if permitted by the award, enterprise agreement, or contract), or negotiate a shorter notice period. If the employee does not agree to shorten the notice period and the employer prefers not to have them work during this time, gardening leave becomes a viable option.
Employees who have resigned and are no longer productive, or who negatively impact workplace culture, can be placed on gardening leave. This helps maintain a positive work environment and prevents potential disruptions.
In cases where employees pose a risk to the business - such as potential confidentiality breaches or misconduct - gardening leave is an effective measure. This is particularly relevant for senior employees who may have access to sensitive information and are leaving to join a competitor. Gardening leave helps mitigate the risk of information leakage and protects business interests.
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If legal advice confirms that gardening leave is an appropriate measure to manage risk, it may be necessary to disable access to company systems, email, shared drives, and other digital platforms. This prevents unauthorised access to confidential information and ensures compliance with data security protocols.
Employers should coordinate with their IT department to:
This step may be important in maintaining the integrity of sensitive business information during the notice period.
Gardening leave offers several advantages for both employers and employees:
Gardening leave is not something leaders implement regularly, so due diligence is essential to ensure it’s the right option and that compliance is upheld. Here are four key steps:
Clearly outline the conditions under which gardening leave can be enforced. Some organisations also choose to implement a standalone gardening leave policy.
Provide transparent communication about the reasons and expectations. Ensure employees understand their rights and obligations during this period.
Where appropriate, disable access to company systems and digital platforms to protect sensitive information.
Consult legal professionals to ensure gardening leave policies and contract terms comply with employment laws.
Employers are encouraged to do their due diligence to determine the best approach for their unique situation. Gardening leave can be a powerful tool when used appropriately, and Australian Industry Group is available to provide specialist advice to support your decision-making.
For assistance with your workplace matters, Members of Australian Industry Group can contact us or call our Workplace Advice Line on 1300 55 66 77 for further information.
Take advantage of more than 150 years of experience actively solving members’ workplace issues and representing their interests at the highest levels of national and state government. Being a member of Australian Industry Group makes good business sense. Call us on 1300 55 66 77 or visit our Why join page to sign up for a consultation with one of our member representatives.
Georgina is the Senior HR Content Editor – Publications at the Ai Group. With over 25 years of experience in human resources and leadership, she has demonstrated her expertise across a diverse range of industries, including financial services, tourism, travel, government, agriculture and HR advisory. She is also an accomplished writer and editor, known for creating high-quality, engaging content that educates and informs. Her writing includes a variety of formats, such as blogs, articles, policies, templates and guides.
