Garden Leave Clauses - in The Light of Covid 19

Introduction.
That period of time during which an employee is said to be prohibited from staying at the work
place, or from working during the notice period is known as the “Gardening leave clause”.
Garden leave is slightly varies from the notice provision. The employers place employees on
garden leave and forbid the employees from working during the said notice period. By notice
period we refer to the amount of notice expected by the employer from the employee before he
resigns from his post and also the amount of notice needed by the employer before the
termination of the contract of the said employee. The employees typically are relieved of their
duties and responsibilities during that time, yet remain employed by the employer and therefore
cannot go to work for a rival company or competitor. To apply for a garden leave, the manner of
their leaving doesn’t matter—whether it’s due to resignation or contract termination.
There are varied reasons for the use of gardening leave clause. First of all the employee is
forbidden to join any rival company during the notice period and secondly, it limits the social
connection between the clients and co-workers of the company so that the employee cannot
influence the current employee , it lowers the chances of any possible informational leak by the
employee.
Thus, the article attempts to first present the case laws with respect to the decisions taken
regarding the garden leave in this unprecedented corona pandemic. Second, the article shall
expound upon the facts which prevail now the new care obligations for the employers which
shows the solution to some questions. Finally, the article shall conclude with few remarks by the
author and a possible suggestion that can be implemented to tackle the issue.
Judicial Take in Combating Garden Leave.
On 22 March, 2006, the division Bench consisting of H.K. Sema J and Dr. Ar. Lakshmanan
J, within the case of Percept D’Mark (India) Pvt. Ltd. v. Zaheer Khan & Anr., the Court
distinguished between garden leave and non-compete clauses, and established that the worker
could also be restricted during the term of employment but not after termination.
Mr. Desai then argued the scope and effect of Section 27 of the Indian Contract Act, 1872.
Section 27 deals with restraint of trade and not with promotion or regulation of trade. Clearly
the case law in India also supports this, he relied on V.N. Deshpande vs. Arvind Mills1.
In 2007, the reliability of the garden leave clause was confirmed through the case of Kouni
Travel Pvt. Ltd. v. Ashish Kishore and Tapas Kanti Mandal v. Cosmo Films Ltd., and stated these
causes are tantamount to situations to ensure the safety of trade secrets, up to this since the
employee who is stuck is given salary during all this. Garden leave clause given by the corporate
reads thus:-
"The Company reserves the proper to need you to stay far away from work/employment for the
amount of three (three) months after termination or resignation of your services with the
corporate . You shall suits comply with all conditions which will be laid down by the corporate
at the time of such resignation or termination. The Garden Leave period shall commence after
you've got served the notice period and have ceased to get on the rolls of the Corporate ."

.
Halt On Garden Leave Clause: Covid-19 Impact.

Due to the outbreak of this corona pandemic, now the companies are thinking to let off the
garden leave clause. The covid-19 has had a great impact upon the business and travel industries
where the displacement of people and goods is the core. People have lost their dedicated jobs.
When the garden leave is give to the employee he is expected not to join another company up to
certain amount of time and this time can go from six months to even one year which is even
worse in facing today's situations when everybody is maintaining distance, no public meetings
are allowed. Therefore sticking to only one company after receiving garden leave from your
respected employer can have serious consequences on your ambitious career.
 New care obligations of an employer considering Covid-19

1
AIR (1964) Bombay 423.
Covid-19 pandemic is being termed as an act of God event in India. On February 19, 2020, the
Indian Government issued Office Memorandum, stating that covid-19 pandemic shall be
considered as natural calamity and act of God clause could also be invoked wherever necessary.
Sec. 618 German Civil Code (“BGB”) provides effective guidelines of protective measures.
The question that arises is whether it is an obligation to grant garden leave? Or is garden
leave voluntary only? There is currently no general obligation on employers to grant garden
leave. Exempting employees from work who aren't sick is then voluntary.
Is that the employer obliged to exempt an employee from work who returns from a risk area?
There is no obligation to exempt such employees from work, but it is sensible to grant garden
leave, especially to avoid infecting an outsized number of colleagues and to avoid any rights of
colleagues to refuse performance.

Analysis Tantamount To Solutions by The Author.
The author is of the opinion that the people who have lost their certain jobs should not rely on the
completion of the notice period because the time lost can be precious regarding your next job.
The laws or provisions should be amended according to the need of the hour to compensate the
problems arising likewise we are facing this unprecedented covid-19 pandemic.
Solutions can be like reducing the time of notice period. And also providing alternative paid jobs
arranged by the employer since he/she cannot allow him to work in his office after giving him
garden leave. To support my contention the author has this case of a 38-year old man Satish
Chomwal who was asked to work more than his notice period in a Gurugram-based IT company.
In his employment contract there was the mention of the ‘gardening leave’ clause which he did
not take care of at the time of signing the contract.
His future employer was angry with this delay because they were hiring for a sensitive project
and wanted him to join soon. But since the notice period was not yet completed he could not
join. Thus, he lost his job.

The Way Forward.
Conclusively, as companies are affected by a pointy drop by demand, rapid support through
grants or credits can help them bridge liquidity gaps. Many affected countries introduced or
announced bold measures over the last days and weeks, often with attention on supporting the
foremost vulnerable who are bearing a disproportionate share of the burden. This note, and
therefore the accompanying policy table, contributes to evidence-sharing on the role and
effectiveness of varied policy tools.
Employment agreements contain clauses related to compulsory leaves namely; garden
leave clause which could prove useful during this regard. Ultimately, the only strategy would be
to debate the challenges with employees and seek their Employers could even be more likely
now to make payments in lieu of notice rather than keep employees employed during their notice
periods, although many employers could have the contractual right to place an employee on
garden leave instead of furlough if there is no work that the worker can perform during the notice
period.
End Notes.

https://publikationen.dguv.de/widgets/pdf/download/article/2054)
https://jma-hrlegal.co.uk/covid-19-update-an-end-to-claiming-furlough-for-employee-notice-periods/
https://blog.ipleaders.in/gardening-leave-clause/

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Introduction.

Judicial Take in Combating Garden Leave.

Halt On Garden Leave Clause: Covid-19 Impact.

 New care obligations of an employer considering Covid-19

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