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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.

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  • Is your (intended) dismissal justified?

  • Can your severance pay increase?

  • Unemployment benefits secured?

  • What are the correct legal steps?

  • We'll get started within 4 hours.

  • This basic check is free of charge.

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.

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.

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.

Call +3120-4689114 (free)

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