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Employment law and good behaviour Part 2 - Garden Leave

Employment law and good behaviour Part 2 - Garden Leave

I promised a second instalment of our blog about how employment law can step in when employers and employees fail to be civilised! Today, in the latest of our “Ennis & Co interviews…” series of blogs, we once again get the thoughts of Greg Hughes, a Senior Associate at Clarke Willmott solicitors. Here, Greg talks to us about garden leave.

Garden leave is a useful tool, but simply turfing a good employee out of a business and onto garden leave as a panic response to their resignation is a really poor way to reward what could be years of loyal service and incredibly hard work. “Why suddenly treat someone as though they have, overnight, become a threat to you and to their colleagues they have come to know as friends?” Greg asks. Treating a leaver as if they are going to abuse the position they may have spent years working towards is poor reward for a decision any individual is entitled to make – to move on in their career.

“Garden leave can be like solitary confinement and to sentence a formerly trusted employee to that simply because they are looking to progress their career somewhere else shows enormous distrust, and can backfire”, says Greg. The individual may behave in a way they would not have entertained had they been better treated – from badmouthing an employer to, in extreme cases, resentfully breaching their employment contact in any one of several ways discussed last week. Greg counsels not to assume that a resignation means an employee can no longer be trusted. “There are always exceptions of course, and garden leave can be a useful tool to get negative people outside of an organization before they can do harm or to allow another member of a team to establish their relationship with a key customer” he adds.

But the crux of the matter for Greg is that a resignation should not interpreted as a disloyalty and punished as such. “Loyalty isn’t committing to an employer forever”, he says, “it’s about working hard, with the best of intentions, for the best interests of your employer. The amount of time you can expect people to be loyal can be directly linked to the training and progression opportunities you give them; the salary, flexibility, and so on. Remember – we pay people because they dedicate most of their working lives to our cause as employers. They give to you and you give back – there is no disloyalty in leaving when the time is right. If you want to put someone on garden leave, they are likely to react to it better it if you approach the whole thing as a conversation, establishing what they should or should not do as part of a two way process.”

We start to talk about emotional intelligence, often referred to as Emotional Quotient (or EQ) within HR and Management circles. Good managers, says Greg, have the EQ to respect that people want to move on in life and will remember the work employees have done before they tendered their notice. Sustaining that trust through an exit process can make a really positive difference for an employee that will almost certainly be communicated onwards and reflect well on the employer’s brand.

“Garden leave doesn’t have to be black and white,” Greg thinks – there is plenty of room for manoeuvre, to bespoke the particular circumstances of a trusted employee’s garden leave. They can help to handover to their successor but be kept away from new deals, they can manage the handover between their clients and their successor to minimise discontinuity – “there are so many ways in which a trusted leaver can enjoy their notice period, be useful to the company during that period and leave on a positive note for both parties”, he says.

There is another reason why this can benefit an employer: “if it’s all out in the open and the employee buys into the process you diminish the likelihood of a other employment related claims”.

For Greg, the key to good employer/employee relationships, at any stage, is trust.

And what of the consequences of a lack of reasonable treatment, from an employer and an employee perspective?

“Well, obviously any dispute can get expensive for both parties, and it can also be very distracting for everyone involved, too”, Greg maintains. The employer may have to investigate historic activity of the employee, scour emails and other electronic documents for disclosure in court proceeding and will have the worry and distraction from running their business. Ex-employees may be receiving threatening letters from an old employer and this can have a negative impact on their performance in their new role, quite often contributing to under-performance and even to them losing their new job altogether.

“All conflict is emotionally draining,” says Greg. “It affects your wellbeing and your personal life, often quite seriously. “More often than not, these employer/employee disputes shouldn’t have happened and need not have”. Of course there will always be times when “things are simply impossible”. But by and large, adopting and maintaining the right behaviours from the outset, Greg concludes, can mitigate this enormously.

Ennis & Co can help clients with Outplacements and a host of Human Capital services, as well as ensuring you get the best possible leaders in the business. You are welcome to contact me to discuss any of these services.

by Lynda Ennis

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