What garden leave means
Garden leave is a period during notice when an employee remains employed and paid but does not attend work.
The employment continues. Salary and benefits continue. The employee remains bound by the duties of an employee, including confidentiality and the duty of fidelity, and cannot start work for a competitor while still employed.
What changes is access. The employee stops attending, stops dealing with clients, and loses access to systems, information and colleagues.
The commercial purpose is time. A departing employee heading to a competitor takes relationships and current information with them, and both decay. Three months away from the market means the relationships have been serviced by somebody else and the information is out of date.
That is why it is used for client facing and senior roles, and why it is frequently more effective than a restraint clause that a court may refuse to enforce.
How it is used
Garden leave should be provided for expressly in the contract.
A clause permitting the employer to require the employee not to attend work during all or part of the notice period, while continuing salary and benefits, and to exclude them from premises and systems.
Without that clause, requiring an employee to stay away is more difficult, because for some roles there is an argument that an employee is entitled to actually work rather than merely be paid, particularly where their skills or reputation depend on doing so.
The clause should also address what the employee may do during the period. They remain employed, so they cannot work for anybody else, and they should be required to remain available to answer questions, to assist with handover and to return company property.
Holidays are worth addressing too. Employers commonly require accrued leave to be taken during garden leave, so the employee does not emerge with a leave payment on top.
And the interaction with restrictive covenants matters. Well drafted contracts set off garden leave against any post termination restraint, so an employee who spent three months on garden leave has that period deducted from a six month non compete. Without a set off, the combined effect can be long enough that a court refuses to enforce the restraint at all.
Key features
- The employee remains employed and paid but does not attend work
- Access to clients, systems and information is removed
- The employee remains bound by employment duties, including fidelity
- Should be expressly provided for in the contract
- Accrued leave is commonly required to be taken during the period
- Should be set off against any post termination restraint
How this works in Nigeria
Garden leave is a more reliable protection than a non compete in Nigeria, and that is the practical reason to use it.
Nigerian courts, following the common law approach, will not rewrite an unreasonable restraint into a reasonable one. A non compete that goes too far fails entirely, and the employer is left with nothing.
Garden leave does not depend on the court's view of reasonableness in the same way. The employee is being paid their full salary and is not being prevented from earning; they are being kept away from the business during a period they were contractually obliged to serve in any event.
That makes it the stronger tool for a Nigerian employer worried about a departing salesperson, relationship manager or senior executive.
The practical package for a client facing role is therefore: a meaningful notice period, an express garden leave clause, a narrow and specific non solicitation of named clients, a confidentiality obligation, and a set off so the whole does not become excessive.
For employees, garden leave is generally comfortable, since it is paid time off. The two points to watch are that you cannot start the new job during it, and that a new employer wanting you sooner may need to negotiate with your current one, which is an ordinary commercial conversation rather than a problem.
And where an employer imposes garden leave with no contractual right and no pay, that is not garden leave. It is suspension without pay, which is a different and exposed position.
Garden leave vs suspension vs non compete
Three ways an employee is kept away from the workplace, with different characters.
Garden leave applies during notice, after resignation or termination. The employee remains employed and fully paid, and the purpose is to protect the business during the run off period.
Suspension applies during an investigation, while the employment continues normally in every other respect. It is a neutral holding step, normally on full pay, and it is not a penalty.
A non compete applies after the employment ends. It restricts where the former employee may work, it is unpaid, and it is enforceable only where reasonable in duration, geography and scope.
An employer worried about a departing employee should look first at notice and garden leave, which are paid and reliable, before relying on a restraint that a court may refuse to enforce.
Limits and risks
It costs money. The employer pays a full salary for somebody producing nothing, which is why long garden leave periods are expensive.
It also depends on a contractual right. Without a clause, requiring an employee to stay away is harder to justify, particularly in roles where being out of the market causes real professional harm.
It only lasts as long as the notice period, so a short notice period gives short protection, which is an argument for longer notice in senior roles.
And it does not prevent an employee preparing to compete. They cannot work for a competitor while employed, and they can plan.
Worth knowing
Include an express garden leave clause and set it off against any post termination restraint. A Nigerian employer combining a three month garden leave with a full six month non compete may find the whole package treated as excessive, and lose the restraint entirely.
Questions people ask
What is garden leave?
A period during notice when the employee remains employed and paid but does not attend work, with access to clients, systems and information removed.
Can my employer put me on garden leave?
Where the contract provides for it, yes. Without an express clause it is harder to justify, particularly in roles where being kept out of the market causes real professional harm.
Am I paid during garden leave?
Yes. Salary and benefits continue, because the employment continues. If an employer stops paying, that is suspension without pay rather than garden leave, and it is a different and exposed position.
Can I start my new job during garden leave?
No. You remain employed, so you cannot work for anybody else during the period. A new employer wanting you sooner may need to negotiate with your current one.
Is garden leave better than a non compete?
For a Nigerian employer, usually. Garden leave is paid and reliable, while a non compete that goes too far fails entirely because courts will not rewrite an unreasonable restraint.
Should garden leave count against a non compete?
Yes, and the contract should say so. Without a set off, a long garden leave followed by a full restraint period can be treated as excessive, and the restraint may not be enforced at all.