Employment Law

The court considered the question of garden leave, holding that whether or not an employee has the right to work is to be determined by construction of the contract of employment.

The test is whether the obligation of the employer is not confined to payment of the agreed remuneration, but also includes the obligation to provide work. The factors taken into account include the uniqueness of nature of the employee’s role, the skills involved in the job and whether those skills would atrophy through lack of use, and the provisions of the particular contract of employment.

Employees who have a right to work have that right subject to the qualification that they have not, as a result of some prior breach of contract or other duty, rendered it impossible or reasonably impracticable for the employer to provide work. Any such breach of contract or other duty must constitute wrongdoing, by reason of which they will or may profit. In such circumstances, there is no obligation on the employer to provide work, even though the contract of employment is ongoing.