Weekly dilemma: Garden leave

Our HR director resigned a few weeks back and is completing three months’ garden leave. Her LinkedIn profile now claims that she is working with a competitor, although she has told us that she doesn’t formally start her new job until after the three months are up. Is there anything we can do?

First, you need to find out whether she has started work for the new company or is intending to start work once the garden leave has expired. The best way to find that out is to email her and invite her into work tomorrow. If she is on garden leave, she should come. If she has started a new job, she probably won’t. If she does turn up, you can ask her to remove the LinkedIn entry until her garden leave has expired.

Let us assume that she has already started the new job. You are entitled to dismiss her for gross misconduct; she is working for another employer while on your payroll. Technically, that is fraud (although she probably doesn’t think of it that way). You will need to go through a fair procedure (ie give her the opportunity to respond to the allegation in a meeting and give her a right of appeal), but you can probably dismiss within about a fortnight and will, therefore, save two-and-a-half months’ notice pay. Even if you don’t go through any fair procedure, your company’s exposure is limited, as an unfair dismissal claim could only result in the balance of her notice pay (which you have to pay anyway) as the compensatory award, plus an additional 25% uplift and a basic award.

With most jobs, particularly client-facing jobs, you would normally be able to get an injunction to stop an individual working for a competitor during the balance of their garden leave. But you might struggle with an HR director, as it would be difficult to show that you have a legitimate business interest to protect by keeping her out of the job market (most commonly seen with salespeople who might divert customers) or that the “balance of convenience” (the test that courts apply when deciding whether or not to grant an injunction) supports an injunction in this case. It would be different if you had any evidence that the HR director was doing anything improper, for example encouraging a team move away from your company to the competitor.

If you want to be difficult, you could write (or ask your solicitor to write) to the new company, enclosing a copy of the HR director’s contract of employment and the correspondence placing her on garden leave, and warning it that she is in breach of contract and you will be seeking injunctive relief and damages against it for inducing that breach if it continues to employ her during the remainder of the garden leave. However, I do not recommend this approach. First, if the company takes advice, it will know that you are bluffing. Second, it will escalate tension between your companies and they are likely to leap on the opportunity to do the same to you should the position ever be reversed.

Of course, if the employee has not actually started work but has updated her LinkedIn profile in anticipation of starting when her garden leave expires, she has not really done anything wrong. You can ask her to remove the LinkedIn status and if she refuses you can give her a very clear warning that you will dismiss her should she continue to refuse. It is arguably gross misconduct, but it is borderline, and dismissal would simply mean that she is free to start the new job the following day.

Daniel Barnett, employment law barrister, Outer Temple Chambers

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