Garden leave / gardening leave
Have you just received a settlement agreement which contains a garden leave? Employers regularly choose this tactic in the run-up to a dismissal. Can you simply be exempt from work and should you object to it?
If you are put on a garden leave, you are no longer allowed to work. Many people feel hurt and consider the bond with their employer damaged. However, it is important that you take the right steps from there. By immediately objecting and securing your legal position, you can take your time to think about what you want: try to fix the issues or part ways upon your terms.
Can I be put on garden leave?
Whether you can be put on gardening leave depends on the situation. It is a remedy with significant impact and often not easy to reverse. Dutch subdistrict judges take the position that employees have the right to work. If your employer chooses to exempt you from work, there shouldn't be obvious alternatives.
A garden leave rarely comes out of the blue. It is usually a consequence of a serious incident or unacceptable behaviour at work. It may also be that your job responsibilities are canceled and no suitable alternative is possible. In any case, there must be a compelling reason. The result is that you are exempt from your workplace, at least temporarily.
To determine whether the measure taken is legally permitted, it will be necessary to examine whether you and your boss have behaved as 'good employee' or 'good employer' respectively (Article 7:611 of the Dutch Civil Code). If a subdistrict court judge considers this, he will take all the circumstances into account. To this end, the past will also be examined, such as the duration of your employment, your performance, interview reports from performance reviews and the compelling reason given by your employer.
Garden leave upon dismissal
In case of an intended dismissal, the situation is a bit different. If your relationship is such that you are trying to part on good terms, drawing up a settlement agreement can provide relief. By putting you on a garden leave, you no longer have to do any work, but you retain the right to salary until your termination date (the end date of your employment contract). It actually offers you the opportunity to look for another job, while still receiving your wages. If you are offered a (conceptual) settlement agreement, a garden leave is quite common.
Requirements for a garden leave
One or more of the reasons below must apply to put you on a garden leave:
- Your working relationship is disturbed or you have seriously misbehaved;
- A final written warning (or use of a less severe means) was no longer possible;
- An investigation is being conducted into determining a punitive measure or the decision to dismiss you caused by your own misconduct;
- Certain activities within your organization are stopped due to a changing company, declining market conditions, inadequate performance or partial disability.
Settlement agreement check
Have you just received a settlement agreement or are you willing to resign based on mutual consent? Have our labour lawyers perform a basic check to find out what's missing or should be improved. That doesn't cost you anything.
Garden leave and your wages
The law states that if you do not perform any work, you cannot claim wages (Article 7:621 of the Dutch Civil Code). However, this is different in the case of a garden leave.
If you are put on garden leave, this is often done by mutual consent. Fortunately, the Supreme Court has determined that gardening leave, suspension and inactive status are a result of a decision by your employer. Since he of she is not allowed to unilaterally withdraw from your employment contract, you retain the right to your wages. It doesn't matter whether your employer had a good reason for your exemption or whether this measure is your own fault.
It is quite common that in the event of a long-term exemption from work, a settlement agreement states that your right to vacation days expires. You will no longer be entitled to them when the final settlement is issued. If you don't have to work for an extensive amount of time but still get paid, that is a pretty fair agreement.
What to do in case of a garden leave?
If you are put on a garden leave, we recommend that you follow our instructions. Contact us for an objection letter and to get tips which help you get the most out of your dismissal proposal.
1. Send an objection letter
Regardless of whether your garden leave has taken place in consultation, it is important that you inform your employer in writing that you do not agree and therefore do not hand over any company assets. Also indicate in your email or letter that you remain available for your work and expect your salary to continue to be paid.
2. Do not sign a settlement agreement
Many employers surprise their staff with a dismissal proposal. You will receive this in the form of a settlement agreement or termination agreement. We often hear of employees being asked to leave their workplace and sign that settlement agreement within a few days. Do not make any commitments or sign anything at all until we have been able to provide you with legal advice.
3. Look for a new job
You can use a garden leave to look for a new job. This period of relative peace can help you come to terms with the layoff and channel your energy to something new. Please note that it isn't always possible to join another company during your gardening leave. Sometimes an additional work clause prohibits this. It is wise to make agreements about this in your settlement agreement.
4. Get legal advice about your rights
If you are faced with a garden leave, we advise you to quickly obtain certainty about your legal position. Your employer might lack a good dismissal reason which could turn the tide. In case your employer has overstepped his bounds, you could even demand a fair compensation in addition to a transition payment. Sometimes we are even able to convert an immediate dismissal into dismissal by mutual consent, making sure that you retain the right to unemployment benefits and receive a positive certificate. Our experienced dismissal lawyers can assess your chances in a few minutes and will advise you free of charge after hearing your story.
Questions about a garden leave
Most of the employees that have been suspended or put on garden leave are looking for answers to the questions below.
What is garden leave?
Garden leave literally means you get time off to work in your garden. In Dutch it's called 'vrijstelling van werk' which translates to 'exemption from work'. Gardening leave is used to temporarily pay employees who are dismissed (or want to resign themselves) without being allowed to do any work. This is often intended to maintain order or to prevent confidential information from leaking and ending up with a competitor.
Where does garden leave originate from?
Gardening leave originates from the British civil service, where employees were able to request leave for exceptional purposes. It became a euphemism for being suspended, because employees who were formally suspended due to a pending conduct investigation, would usually request a special leave instead. The term received extra attention in 1986 when it was used in the BBC sitcom Yes, Prime Minister.
What do I have to do when I'm put on garden leave?
Never simply agree to a gardening leave to avoid forfeiting your rights. We recommend that you take the following steps:
- Call us for advice about your rights (free).
- Send a letter of protest.
- Do not sign any settlement agreement.
- Start looking for a new job.
Am I being dismissed after my garden leave?
Your employer can use a garden leave as a disciplinary measure, to send you home if there is an insufficient amount of work or to give you time to look for a new job. You do not have to be fired perse after being put on a gardening leave. If a garden leave is part of your settlement agreement, it is customary though.
Do you accrue vacation days when you are put on garden leave?
Yes, you do indeed accrue vacation days if you are on gardening leave. Your employer cannot deduct vacation days during your exemption. With a settlement agreement you can agree that you will be exempt until the end of your employment contract. If that takes a long time, you could agree that your vacation days will expire.
Will I retain my unemployment benefits if I'm put on garden leave?
Yes, you retain the right to unemployment benefits if you are put on garden leave. One requirement though is that you are instantly available to work. If you are ill, it is therefore risky to file a recovery report and accept a garden leave before your termination date.
Does a gardening leave count as a regular leave?
No, that doesn't count as a vacation. An employer often tries to include a clause in a settlement agreement in which unused vacation days count as having been used. If you only have a few vacation days left and are put on garden leave for a long period of time, this may be reasonable. Conversely, the opposite applies.
Can my employer offset a garden leave against the transition payment?
Your employer may deduct transition costs and employability costs from the transition payment. Transition costs are aimed at preventing unemployment. Examples of this matter are training, outplacement and applying a longer notice period. This may not concern wage costs and you must have agreed to it in writing in advance.
Is a garden leave allowed with a temporary contract?
Yes that is allowed. Your employer can (temporarily) put you on a garden leave if he deems this necessary or in case you've agreed mutually. It does not matter whether you have a temporary contract (employment contract for a fixed period) or a permanent contract (employment contract for an indefinite period).
How do I object to a garden leave?
You can do the following to object to a gardening leave, suspension or inactivation:
- Indicate that you remain available for work.
- Object to the garden leave with a protest letter.
- Do not agree to a settlement agreement.
- Do not surrender company property.
- Ask for free advice from a Dutch labour lawyer.
Do I keep my salary if I am put on a garden leave?
If an employee is suspended, put on layoff or garden leave, he or she retains the right to a salary. Article 7:628 paragraph 1 of the Civil Code "No work, only wages" states that a garden leave is entirely at the expense and risk of the employer.
Is a garden leave allowed in the event of illness?
If you become ill, your employer might want to dismiss you. You will be offered to sign a settlement agreement, with a garden leave until your dismissal date, provided you report better first. Be careful in this occasion: if you are genuinely ill, you are not entitled to unemployment benefits.
What about garden leave and a settlement agreement?
In the event of a proposed dismissal by mutual consent, it is quite common to have your settlement agreement include that you will be put on a garden leave. You will then no longer have to do any work until your termination date, but you will still receive your salary and you can apply for a new job in the meantime.
Free legal advice about garden leave
We are happy to advise you about your gardening leave or (intended) dismissal. You can call us free of charge. If you fill out the form below, we will call you back at an appropriate time.