What is gardening leave? Understanding gardening leave in Hong Kong.
In today's fast-paced corporate world, data security and trade secrets are critical and competitors are doing whatever they can to find an edge. This ultimately means businesses must do whatever they can to protect their own interests.
One such way that employers look to achieve this competitive edge is through a contractual mechanism called 'gardening leave', which acts as a contractual provision that prevents employees from working during their notice period whilst keeping them on full pay.
What is gardening leave?
Gardening leave refers to the period during which an employee who has resigned or been terminated remains on the company payroll but is not required to be at the workplace or continue working on any projects related to their role.
This will typically mean that the employee is no longer allowed to engage with clients, access company systems or work for a competitor during this time.
Therefore, the goal of a gardening leave clause is to safeguard confidential information, important client relationships and critical business strategies.
How does gardening leave work in Hong Kong?
Gardening leave in Hong Kong is purely contractual and not governed by statutory employment law. Unlike some jurisdictions, the Employment Ordinance does not specifically address gardening leave, which means its enforceability depends entirely on the employment contract and how it's implemented.
Key requirements include:
- Contractual requirement: A specific 'gardening leave' clause must already exist within the employee's contract before it can be enforced. Without this clause, employers cannot unilaterally impose gardening leave.
- Restraint of trade clauses: For any employee placed on gardening leave, a post-employment restraint period may need to be carefully drafted to ensure it's reasonable and enforceable under Hong Kong law. Courts in Hong Kong will only enforce restraint of trade clauses if they protect legitimate business interests and are reasonable in scope, duration and geography.
- Employment rights remain intact: Employees placed on gardening leave must still receive their salary, all benefits and entitlements, including bonuses (if applicable under their contract). Employers cannot reduce remuneration during this period.
- Legal protections: If gardening leave is deemed to be unfairly enforced or if the employer breaches the employment contract, an employee may have grounds for a legal challenge through the Labour Tribunal or civil courts in Hong Kong.
What are the pros and cons of gardening leave?
For employers, gardening leave is commonly used as a strategic benefit to:
- Stop employees from immediately joining a competitor and sharing sensitive knowledge and trade secrets
- Prevent risking key client relationships, particularly important in Hong Kong's relationship-driven business culture
- Allow for a smooth transition of responsibilities without disruptions
However, there are also some disadvantages to activating a period of gardening leave. The main disadvantage is that the firm has to pay the employee their full salary and entitlements whilst they are not actively engaged in their employment. Depending on the state of company finances, this is a trade-off that often needs to be carefully considered.
It is critical that the company does not try to reduce the employee's remuneration or entitlements during this notice period, as this opens the organisation up to legal challenges for breaches of the employment contract and potential claims under the Employment Ordinance.
Gardening leave is particularly common in Hong Kong's financial services sector and other industries where employees have access to commercially sensitive information. Many of which Workday serves as core industries, including:
- Banking and financial services
- Technology and IT
- Legal and consulting firms
- Media and advertising
- Private equity and investment management
Frequently asked questions.
How long does a period of gardening leave last?
The length of time gardening leave typically lasts may vary by industry as well as the seniority of the employee's job role. Usually, gardening leave will range between one to six months and in some rare occurrences may sometimes extend up to 12 months. Longer periods are expected for more senior roles, particularly in Hong Kong's financial services sector.
However, enforcing these time periods can often be negotiated, sometimes with legal counsel or through settlement between parties. Hong Kong courts will scrutinise excessively long gardening leave periods to ensure they don't operate as an unreasonable restraint of trade.
Can a company legally force gardening leave?
Gardening leave cannot be legally forced by an employer unless the employment contract explicitly states this as a condition. However, if no gardening leave clause exists, the employer has no choice but to either allow the employee to work their agreed notice period or move to negotiate a mutual agreement that is fair to both parties.
Without a contractual provision, attempting to impose gardening leave could constitute a breach of contract, giving the employee grounds to resign and claim constructive dismissal.
Should you include a gardening leave clause in your employment contracts?
Depending on the industry you are operating in, a gardening leave clause can act as a very valuable and sensible safeguard against employees taking critical knowledge and key client relationships directly to a competitor. This is particularly relevant in Hong Kong's competitive markets, such as financial services, technology and professional services.
Gardening leave is a useful tool for protecting business interests whilst ensuring employees receive their agreed entitlements. However, in Hong Kong, it must be carefully managed within employment contracts and legal frameworks to be enforceable. This means that employers should consult legal expertise to ensure their policies align with the Employment Ordinance and Hong Kong employment law principles.
Workday provides HR software solutions to help you manage workforce policies, compliance and talent transitions seamlessly whilst ensuring adherence to Hong Kong's employment framework.