Glossary

Garden leave

is a paid period after notice when the worker stays engaged and is told not to work or contact clients. It is common in employment and can be written into a contractor paper. It is not a free-standing restraint. Pair it with a narrow . Tillman v Egon Zehnder Ltd [2019] UKSC 32 is the modern restraint case.

Last updated 28 October 2026

The commercial point is simple: you pay to keep the person off a rival’s books while notice runs. Evening Standard v Henderson [1987] ICR 588 is the employment illustration. A contractor is not an employee, so you only get garden leave if the paper says so and you keep paying. A clause that benches someone without pay is just an unpaid ban, and it will be read as a restraint.

We put garden leave next to the notice period and the non-compete. Lex will not invent a benching right that was not priced. If you want the contractor available but silent, say so, keep the fee running, and keep the post-term restraint short enough that Tillman severance could still save it.

Does garden leave only apply to employees?

The case law is employment law. A contractor can agree the same mechanics: paid notice, no client contact, no other work in a named field. Without an express clause, telling a contractor to “stay home” and stopping the fee is a repudiatory breach, not garden leave.

How does it sit with a non-compete?

Garden leave is during the paid notice. A non-compete is usually after the relationship ends. Count garden leave against the post-term restraint so you do not stack six months of each. Tillman [2019] UKSC 32 is about severing excess words in a restraint, not about writing a longer one.

Should garden leave be paid?

Yes. The whole point is that the contract continues. Unpaid benching is a restraint you have not paid for. On a contractor paper, “paid” means the or the day-rate for the notice window, not statutory pay.

Can we put someone on garden leave without a clause?

Not safely. The right to send someone home and keep them off the market is a contractual right. Implied duties of trust in employment sometimes fill the gap; they do not fill it for a freelancer. Write the clause, or do not bench them.

A worked example

A contractor’s 12-month paper has a 30-day notice and a right to garden leave on full fee. The agency gives notice on 1 June and benches the contractor from client Slack the same day. The fee for June is paid. A three-month non-compete starts on 1 July, and the June garden leave counts toward it, so the restraint ends on 1 September, not 1 October. The contractor may prepare a new pitch at home; they may not call the agency’s clients.

How it shows up in a contract

Sample wording · our own drafting

During any notice period the Client may require the Supplier not to perform the Services, not to contact the Client's customers, and not to work for a named competitor, provided the Fees for that period continue to be paid. Time spent on garden leave counts towards any post-termination restraint. This clause is not a non-compete after the Term.

In Plain English

While notice is running we can ask you not to work, not to call our clients, and not to sit with a named rival, as long as we keep paying. That time counts toward any later non-compete. Once the term ends, this clause is over.

Common mistakes

  • Benching a contractor without an express clause and without paying.
  • Stacking garden leave and a non-compete so the person is off the market for a year.
  • Calling unpaid downtime “garden leave”.
  • Using garden leave as a substitute for a cure period after a breach.

What the legislation says

  • Unenforceable words may be severed from a post-employment restraint where they can be removed without adding to or modifying what remains, the remaining terms continue to be supported by adequate consideration, and removal does not generate any major change in the overall effect of the post-employment restraints.

    Source: Tillman v Egon Zehnder Ltd, [2019] UKSC 32Checked 28 October 2026Pending lawyer review

Sources

Frequently asked questions

What is garden leave?

A paid period after notice when the person stays engaged, is paid, and is told not to work or contact clients. It needs an express clause on a contractor paper.

Does garden leave only apply to employees?

The cases are employment cases. A contractor only has garden leave if the contract says so and the fee keeps running.

How does it sit with a non-compete?

Garden leave is during paid notice. A non-compete is usually after. Count garden leave against the post-term restraint. See /glossary/non-compete.

Should garden leave be paid?

Yes. Unpaid benching is a restraint you have not paid for. On a contractor paper, pay the retainer or day-rate for the window.

Related

The legal wording governsLast reviewed 28 October 2026Pending lawyer review