New prospective employee on gardening leave - what can they do in the interim?

[BlueMagician]

A new employee is starting their job with us in a few months - they are currently on 3 months gardening leave from their old employer..
1) Can they begin any preparatory work for their new role in the interim?
2) Can they meet any of our team while on gardening leave?
3) If we send them reading matter, does that constitute any breach of their gardening leave?

Thanks

[atticus]

What does this person's contract with his current employer say?

[BlueMagician]

Sorry for slow reply Atticus (still getting used to the interface).
Unfortunately I haven't seen their contract - all I know is that when they handed in their resignation, they were given 1 hour to clear their desk. They are on 3 months gardening leave but want to do preparatory work before they start with us in 3 months.
I'll try and get a copy of their contract.

[atticus]

Bear in mind that this person is still employed and being paid by the employer he will be leaving.

[BlueMagician]

Thanks for getting back to me.

Can this person do any training with us in the interim, in their own time i.e. out of their employer's contracted hours?
Are they able to access any of our data or testing environment systems (software)?

They are keen to hit the ground running with us in June (great for us) but we don't want them to fall foul of their contract.

[BlueMagician]

Thanks Attica
Ooops I don't think my reply went through?
Is this person allowed to do training in their own time with materials that we provide them?
Are they allowed to access any of our software systems for training?

[des8]

I think it will depend on whether or not the existing employment contract contains an exclusivity clause

Tagging ULA

[ULA]

Whilst on garden leave the individual is still under contract with their employer. As such, there are limitations as to what employees can and cannot do and these will be prescribed under the contract of employment and implied contract terms. However, in most cases employees must refrain from starting work for a new company.

Arguably any of the scenarios you have set out in posts #1 and #5 would not be allowable under the principles of garden leave. However one of the important details not covered in your posts, are the reason the indiviudal has been put on garden leave. Are you considered a competitor, client or supplier to the current employer?

[BlueMagician]

Sorry for the slow reply...notification emails are not on.
Thanks both.

We (new employer) are a competitor to her current employer.

If the new prospective new employer did use one of our computers in the next few months, would that mean they have started their contract with us, rather than 'preparing to compete'?

[ULA]

If you are a competitor to the current employer that explains the garden leave.

I would be very wary in that case in asking this person to do anything for you prior to the commencement of their start date.

[BlueMagician]

Thanks so much...so if we loaned them a computer (they say they don't have one) while on gardening, just by using our computer does not mean a start of contract?
We (the prospective employee) just needs to be wary of the gardening clauses and 'preparing to compete'...and we are.

2 HR advisors and one lawyer have said that just by them using our computer that 'would start the contract', but we don't think it would...mixed messages.

[atticus]

I have missed the last few posts, but agree with ULA.

This employee's contract with his current employer needs to be considered, but he overwhelming likelihood is that during the period of garden leave - and possibly for a period of time afterwards - he cannot do anything to assist a competitor or to prepare to assist a competitor.

You need to take care not to be dragged into possibly expensive court action. I guess your business cannot afford it.

[ULA]

I really would not advise loaning any equipment, particularly a computer, which could be interpreted as you wanting the person to start working for you before the end of their garden leave period.

[atticus]

Can I add that I think you are unwise be to doubting advice given by 2 HR advisors and 1 solicitor, when all have said the same. You can add me to the list: I have dealt with this type of case, and I agree with them.

Think of it this way. You are trying to get to a position where on day 1 with you this employee would be some way further ahead in terms of ability to compete than if she did none of the preparatory stuff you would like her to do. Her contract almost certainly prohibits this.

[BlueMagician]

Thanks so much both of you. It is very kind that you give this advice.
Have a good day.

PS I am also a doctor and always giving 'free advice' but I will donate to the site.