Garden Leave

[vault]

I Wonder if anyone here can advise.

I have been working for a company for a couple of years and have subsequently left to move to something else. On receiving my notice they put me on garden leave which I understand the logic of due to the nature of the business. I was expecting to get my holiday pay in my final pay packet but when that didn't appear, my employer pointed me to a clause in my contract which basically says that if I am put on garden leave, I give up any holiday. Is this legal? They owed me around 20 days and it seems that I lose my holiday pay due to their decision to put me on graden leave. I have included the relevant part of the contract below.



9. HOLIDAYS

9.1 The Company's holiday year runs between 1 January and 31 December. If the Appointment commences or terminates part way through a holiday year, your entitlement during that holiday year shall be calculated on a pro-rata basis rounded up to the nearest half day.

9.2 You shall be entitled to 20 days' paid holiday in each holiday year plus the usual public holidays in England and Wales (pro rata for part timers).

9.3 Holiday shall be taken at such time or times as shall be approved in advance by your Line Manager. You shall not carry forward any accrued but untaken holiday entitlement to a subsequent holiday year unless you have been prevented from taking it in the relevant holiday year by one of the following: a period of sickness absence, maternity, paternity, adoption, parental or shared parental leave. In cases of sickness absence, carry-over is limited to four weeks' holiday per year less any leave taken during the holiday year that has just ended. Any such carried over holiday which is not taken within eighteen months of the end of the relevant holiday year will be lost.

9.4 You shall have no entitlement to any payment in lieu of accrued but untaken holiday except on termination of the Appointment. The amount of such payment in lieu shall be 1/260th of your salary for each untaken day of the entitlement.

9.5 If on termination of the Appointment you have taken more holiday than your accrued holiday entitlement, the Company shall be entitled to deduct the excess holiday pay from any payments due to you calculated at 1/260th of your salary for each excess day

9.6 If either party has served notice to terminate the Appointment, the Company may require you to take any accrued but unused holiday entitlement during the notice period.

9.7 Any accrued but unused holiday entitlement shall be deemed to be taken during any period of Garden Leave.

[ULA]

Yes they can require you to take holiday during your notice period even if you have been put on garden leave and this is covered expressly by clause 9.7 of your contract. However you do continue to accrue holiday during your period of garden leave so they need to calculate holiday through to your termination date.

[efpom]

If my understanding is correct, "garden leave" is not "leave" at all, but is a device used by an employer to exclude a worker from it's workplace(s) by sending him home. But the worker must remain in the vicinity of his home, available at short notice to do his employer's bidding, should his employer decide to end the"garden leave".

If that is right, the worker on "garden leave" does not enjoy the right to spend his statutory or contractual leave, as he chooses, for, by example, going on a cruise, or deciding to go hiking in some remote area.

Para 9.7 of the contract of employment seems to me, therefore, to be an attempt to "contract out" of the Working Time Regulations, which is prohibited.

[ULA]

I appreciate your perspective and the logic of your post efpom however, the European Court of Justice (ECJ) has ruled that workers placed on garden leave are not entitled under EU law to pay in lieu of unused holiday they could have taken during the garden leave period (unless they were unable to take it due to sickness). ]

Under UK law, it has always been possible and remains advisable for employers to expressly provide in the contract that accrued holiday is to be taken during garden leave, or for the employer to give requisite notice to the employee to take it. In my opinion the 9.7 clause gives that notice.

[efpom]

Thank you Ula - Hans Maschek v Magistratsdirektion der Stadt Wien - Personalstelle Wiener Stadtwerke does seems to defeat the proposition I make in my post 3#.