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Gardening Leave/Contract Notice

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  • 10-11-2016 5:12pm
    #1
    godtabh
    Moderators, Science, Health & Environment Moderators Posts: 23,218 Mod ✭✭✭✭


    Posting this on behalf of my bother.

    He currently works for the second biggest telco in Ireland. He successfully applied for the similar position in the largest telco in Ireland.

    His contract states that in this eventuality he will be placed on gardening leave but due to his line manager also leaving at the same time (a month apart) he has been told he cant take gardening leave.

    He has been asked to take on the the line managers role in the interim. His current role and the line managers role would be privy to a lot of sensitive data and strategy discussions.

    He believes this puts him in a very awkward position. When he leaves his role (if he is made work the 3 months notice period) he will have knowledge his former employer as he joins their biggest competitor. He feels that any input he has with his new employer will be influenced (either directly or indirectly) by the work he has done over the next 3 months.

    His current employer has stated that gardening leave is discretionary but this isnt explicit in the contract which states that 3 months notice is required to facility a proper transition.

    His question is if gardening leave isnt been offered can he revert to his one months notice? I have advised him it should and he should negotiate an earlier release.

    Any thoughts?


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    #2
    davo10
    Closed Accounts Posts: 6,926 ✭✭✭davo10


    godtabh wrote: »
    Posting this on behalf of my bother.

    He currently works for the second biggest telco in Ireland. He successfully applied for the similar position in the largest telco in Ireland.

    His contract states that in this eventuality he will be placed on gardening leave but due to his line manager also leaving at the same time (a month apart) he has been told he cant take gardening leave.

    He has been asked to take on the the line managers role in the interim. His current role and the line managers role would be privy to a lot of sensitive data and strategy discussions.

    He believes this puts him in a very awkward position. When he leaves his role (if he is made work the 3 months notice period) he will have knowledge his former employer as he joins their biggest competitor. He feels that any input he has with his new employer will be influenced (either directly or indirectly) by the work he has done over the next 3 months.

    His current employer has stated that gardening leave is discretionary but this isnt explicit in the contract which states that 3 months notice is required to facility a proper transition.

    His question is if gardening leave isnt been offered can he revert to his one months notice? I have advised him it should and he should negotiate an earlier release.

    Any thoughts?

    His current employer is right, gardening leave is discretionary unless it clearly states in his contract that this will, rather than may, apply when notice is given. Effectively it means that the employee is being paid their wage even though the employer does not want him to attend for work. Notice periods are agreed in the contract of employment, statutory notice periods are just the minimum required, they can be extended or indeed shortened by agreement of both parties when signing contract of employment. If he goes away with trade knowledge, that's the employer's problem, they obviously think that having him there for the three months outweighs any risk of him aiding a competitor.

    Gardening leave clauses in contracts typically take the form of "in the event of notice being given by the employee, the employer may chose to place the employee on gardening leave while still paying remuneration at the normal rate".


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    #3
    godtabh
    Moderators, Science, Health & Environment Moderators Posts: 23,218 Mod ✭✭✭✭godtabh


    It is stated in his contract re gardening leave if jointing a competitor.

    He is also not aware of any instance over the last 10 years where gardening leave hasn't been granted.


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    #4
    Stheno
    Moderators, Business & Finance Moderators, Science, Health & Environment Moderators, Society & Culture Moderators Posts: 51,688 Mod ✭✭✭✭Stheno


    godtabh wrote: »
    It is stated in his contract re gardening leave if jointing a competitor.

    He is also not aware of any instance over the last 10 years where gardening leave hasn't been granted.

    He can try insisting on it but the company can refuse it tbh.


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    #5
    godtabh
    Moderators, Science, Health & Environment Moderators Posts: 23,218 Mod ✭✭✭✭godtabh


    He doesnt want to force it but doenst want to be in a position where he could be accused of using insider information against his former employer. He wants to leave on good terms


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    #6
    Stheno
    Moderators, Business & Finance Moderators, Science, Health & Environment Moderators, Society & Culture Moderators Posts: 51,688 Mod ✭✭✭✭Stheno


    godtabh wrote: »
    He doesnt want to force it but doenst want to be in a position where he could be accused of using insider information against his former employer. He wants to leave on good terms
    Can he simply not divulge anythig he knows to his new employer? Or sign an NDA before he leaves his current one?


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    #7
    davo10
    Closed Accounts Posts: 6,926 ✭✭✭davo10


    godtabh wrote: »
    He doesnt want to force it but doenst want to be in a position where he could be accused of using insider information against his former employer. He wants to leave on good terms

    I wouldn't be at all concerned about the insider info if I were him, it is the company requiring him to stay on, if he takes the knowledge he learns elsewhere, well that's their tough luck. I really don't understand his concern re this, I suspect this is more to do with him looking forward to a little bit of paid r&r before he starts his new job.


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    #8
    godtabh
    Moderators, Science, Health & Environment Moderators Posts: 23,218 Mod ✭✭✭✭godtabh


    davo10 wrote: »
    I wouldn't be at all concerned about the insider info if I were him, it is the company requiring him to stay on, if he takes the knowledge he learns elsewhere, well that's their tough luck. I really don't understand his concern re this, I suspect this is more to do with him looking forward to a little bit of paid r&r before he starts his new job.

    Possibly but his stressed about it all. He'd rather start his new role on monday than work through the stress.

    For example. His current company is planing price changes. He knows when at the moment. He is worried that if his future company change their plans between now and when he joins he will be blamed for leaking info.


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    #9
    Eoin
    Registered Users Posts: 21,257 ✭✭✭✭Eoin


    godtabh wrote: »
    He doesnt want to force it but doenst want to be in a position where he could be accused of using insider information against his former employer.

    It kinda sounds to me like the ball is entirely in his current employer's court?

    If they decide to still have him do his line manager's job, knowing what company he is going to and knowing what info he will have access to, then surely that's on them. All he can do is say very clearly that is not comfortable having access to that information. Suggesting an NDA is not a good idea IMO, as that could actively hinder him in doing his new job.


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