Hi all,
hope someone can help me with this.
I'm a full time employee, on the 9th of January I handed my resignation in, with a leaving date of 17th of February, therefore giving more than my 1 month notice.
I have carried over 5 days holiday from last year and this years holiday (till the 17th feb) is about 3 days, giving me a total of 8 days or so.
For some reason HR has decided to put me on gardening leave due to my position in the company and me moving to a competitor.
My manager called me yesterday to say that his boss and HR decided to put me on gardening leave, I would be paid till the 17th of Feb, but wouldnt be required to go to the office anymore, but they want me to use my 8 days annual leave during the gardening leave period.
Can they do this?? I was hoping to be paid the leave that was not taken... as I've always been in all other companies I've worked for.
Looking at my contract, under "Notice Period and Leaving Employment" it says:If the Company wishes to terminate your employment, or if you wish to leave employment before the expiry of aperiod of notice, the Company may require you (for all or part of theperiod of notice) to perform duties not within your normal duties, or to undertake special projects, or not to attend work. For so long as youare not required to work during this period, you will continue to receiveyour normal salary and other contractual benefits and will continue to be bound by all the terms of your contract. You may be required totake any accrued annual leave whilst you are not required to attendwork.
and under "Annual Leave" it says: If you have any unused holiday then the Company may require you totake leave during your notice period or alternatively pay you in lieu.
My view is, its their decision to put be on gardening leave, I would happily keep working and honor my contract that stipulates not to disclose any company info to third parties, but my employer is going one step further.
I've also read that Under reg.15 of the Working Time Regulations 1998 (SI 1998/1833) an employer may nominate dates on which an employee must take some or all of his or her statutory annual holiday entitlement, provided that advance notice is given. The notice required is a minimum of twice as many days as the number of days' holiday that the employer wishes the employee to take. For example, the employer would have to give at least two weeks' notice in advance of the start date of a period of one week's holiday leave.
So does that mean that if they want and if they can, as per my contract, force me to take the annual leave whilst on gardening leave, they would have to give me 16 days notice? seeing as I have 8 days left?
I only have 13 days left in the company, so this notice cant be used anymore?
Also, wouldnt HR need to send me a formal notification that I've been put on gardening leave? All I got was a call from my manager and when i challenged him with the above he said he didnt know and was going to ask HR...
Thanks in advance for any help
JPS
JPS,
A nice detailed post, which helps in a reply. Good news on the job, just a shame that leaving your present employer is being a bit difficult.
In short, yes they can make you take gardening leave - there should really be an express clause in the contract that refers to it, always put them in mine, but the above extract does say about not requiring you to work, so does hint at it without actually mentioning gardening leave.
Best practice should really require them to write to you to confirm that have placed you on GL and that letter should indicate what you can and cant do while on leave. I alway use that letter to remind the person of the restrictive covenants, which given that you are going to a competitor, then i am surprised they have not mentioned them - you may want to check your contract again!!!
Re the holiday - its in the extract again - yes they can make you take it during your leave.
I note you have quoted the WTR and thats fine - but really applies to when you are employed on an on-going basis - I dont follow that and usually just work to a week as within the contract. In terms of nominating holiday - thats more applicable when say the office closes at Christmas - so in Jan 2012, you would tell the employees they need to keep 3/4/5 days out of their allowance for theChristmas closeure - not really applicable to you, but can see how might cover you.
Not sure of the section - but you will also see in the WTR there is no automatic right to be paid for unused leave, which is what you would rather.
You may want to go back and ask them, and maybe negotiate with them, but not sure what incentive they would have to conceed to your wishes really.
Sorry, that probably not the answer you were looking for.
Good luck in your new role.
Adrian
Hi Adrian,
thanks for your quick reply.
The way I'm seeing the case is:According to the WTR, although it doesnt apply direct to my situation, but as you say, it might cover me, HR cannot force me as there isnt enough days left to give me the required notice.
My contract also doesnt have a specific gardening clause, so effectively, I cannot be put on gardening leave.
So.... cant be put on gardening leave and cant be forced to take the annual leave, due to what WTR says.
I dont know.. im just reading what the law says and the logical sense.
Also, most of my colleagues have handed their notices in, will they all be put on gardening leave? if they are there wont be anyone left to do the jobIf they put me on gardening leave, shouldnt they put everyone on gardening leave? (we are all, 3 of us, at the same level)?
I think the points you make are very valid, and thats why I said you might want to talk to your HR person and hope they are reasonable.
GL is covered in that clause but just not mentioned - now that maybe intentionally vague so allows HR a bit more scope (so they think) - I think it causes problems like this when you try to enforce something both parties interpret it differently.
Thats why I'm very clear when write contracts, and then if I decide to make an exception its clear to both parties, and you know I have done you a favour etc!!!
I think its a mute point and worth a conversation - the only way you will know for sure whether can, is take it to a tribunal for them to rule on the clause, and you will be long gone by then. But as say - worth a chat.
Again with the notice - mute point, it is covered in that clause and does say can be asked to take it - again worth a conversation then a letter maybe.
GL is a tough one really, I only ever use it for very senior positions and /or those people in positions that 'could' if left in place do some serious damage to the business, and/or have access to sensitive material. So in your case the fact that you are going to a competitor, I prob would put you on gardening leave, to restict your access to customer information, patents etc - not saying you would do anything, but its there to protect the company.
The level might be relevant, but depends what their role is and how much damage they could do. But yes would be hard to have all 3 off at a time - if it were me, it might be that as an HR person would have to negotiate some form of retention payment or delayed notice payment to get an individual to stay longer.
Might be able to claim discrimintion if they treat people differently, but that does very much depend on the circumstances.
Going to be honest with you - been in this same situation myself as an HR prof, but on the receiving, was annoyed and p'd off and wanted to fight to get paid etc, but in the end, just focused on leaving and starting my new job - made the last month far more manageable - but thats me and we are all different.
Good luck
A.
Ha!!
very interesting... sent all the law quotes and basically what I wrote here to HR.
They replied back that I'll still be put on garden leave from the 1st Feb to 9th Feb, but will have to book 6 days annual leave from the 10th feb to the 17th feb.
and they say that this way they are giving me enough notice.
Basically, they dont have a clue about the law and are relying on something I sent them to now force me to take the leave, but give enough notice..
What a joke
Also another thing that i read somewhere but cant find.
For the company to force me to take annual leave, isnt that almost like saying there's no work for you during this period?
Like companies that close during Christmas do?
But for them to do that, wouldnt my contract have to say something along the lines of 'the employer is not obliged to provide work during the length of the contract'?
im sure i read something like that somewhere
this is what it says on my contract:
Continuous employmentYour start date for continuous employment purposes is the datespecified in the Summary of Personal Terms, Pay and Benefits. Noprevious period of employment shall count as continuous for thepurposes of the Employment Rights Act 1996, or for any otherpurposes.
doesnt that mean they have to provide me with continuous employment?
Hi JPS
Another example of HR gobblygook, don't you just love it!
What it is trying to say is that the period of your employment deemed to be continuous started on the date shown in the Summary and any previous period of employment not deemed to be continuous is not. Easy !
Sorry, couldn't resist it. The worst worded contracts are those written by solicitors, the next worse are those written by HR people who think a contract should look like it's been written by a solicitor.
The paragraph you have reproduced has nothing to do with the provision of work. Hope this helps.
Pausanias
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