Christie v Johnston Carmichael
Mr Christie was employed by a firm of chartered accountants, Johnston Carmichael. In 2007, Mr Christie was successful in obtaining new professional qualifications and membership of the Chartered Institute of Taxation. Mr Christie sought recognition of his new qualifications by his employer. He wanted a higher salary and more specialist tax work.
Johnston Carmichael could not accommodate Mr Christie’s wishes in his existing office. It was proposed that in April 2008 he move to the Aberdeen office. There were various discussions as to how that might be achieved. It was made clear to Mr Christie that he would not be allowed to continue servicing any of his existing clients in Aberdeen unless he could make a satisfactory business case, client by client, in support of the proposition.
A meeting took place on 6 March 2008 to discuss the allocation of Mr Christie’s clients to other members of staff. Mr Christie made no business case that he should continue servicing any of his clients after moving to Aberdeen. It was proposed that Mr Christie’s existing clients would be told of his move to Aberdeen and the name of their new contact.
On 12 March 2008, Mr Christie delivered a letter of resignation, giving three months’ notice of termination of his employment. In the letter, Mr Christie alleged that the firm intended to vary unilaterally his contractual terms and remove his current position. Mr Christie alleged that this was an anticipatory breach of contract such that he had no option but to resign and claim constructive dismissal.
Johnston Carmichael responded to Mr Christie’s letter saying that Mr Christie would not be required to work his notice period but would be put on garden leave with immediate effect. After further correspondence relating to restrictive covenants in the contract of employment, Mr Christie wrote a letter stating that as he had not been allowed to work his notice, he was not on garden leave and his contract of employment was at an end.
Mr Christie issued an employment tribunal claim, alleging constructive dismissal. He also alleged that Johnston Carmichael was in breach of contract by putting him on garden leave. The tribunal found that Mr Christie had not been constructively dismissed. It also found that Johnston Carmichael was entitled to put him on garden leave.
The tribunal said that, notwithstanding the absence of an express garden leave clause in Mr Christie’s contract of employment, his role was not unique and he would not be deskilled by not exercising his skills for a period of three months. Mr Christie appealed the tribunal’s decision in relation to garden leave.
The EAT considered the extent to which an employee’s right to work “trumps” a garden leave clause. It said that in Mr Christie’s case, the contract of employment could not be construed as giving him the right to work. His duties were not unique, it was a job carried out by a number of other employees and which could be carried out without formal accountancy qualifications. There was also no evidence that he would become deskilled during the garden leave period. Johnston Carmichael was therefore entitled to put him on garden leave.
Although this case is a useful example of the courts upholding an employer’s entitlement to place an employee on garden leave without an express right to do so in the contract of employment, employers should continue to exercise caution before doing this. The individual circumstances should be carefully considered in each case.
Karen Macpherson, partner, DLA Piper
Practical guidance from XpertHR on garden leave