0800 019 7073 - Direct Access Barristers, Public Access Barristers, Employment Barristers Chambers - Employment Law Barristers Directory

Direct Public Access Barristers and Employment Barristers

December 21, 2011
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To find Public Access Barristers for your hearings, you can either phone us on 0800 019 7073 or 0203 603 3779 giving the case details (minus party names) as specified below or fill in the contact form. We take bookings from businesses, members of the public and solicitors.

Barrister Profile

Montclare Campbell LL.B First Class Honours

Direct Public Access Barrister at Clerksroom Chambers

Montclare’s clerks : 0845 083 3000

Email: Campbell@clerksroom.com

London – 218 Strand

Telephone: 0207 125 0421 (International: +44 207 125 0421)
Fax: 0845 083 3001 (International: +44 1823 747 003)
Clerks: 0845 083 3000 (24/7) (International: +44 1823 442 671)
Post: 3rd Floor, 218 Strand, London, WC2R 1AT
DX: 232 London Chancery Lane
General Information

Montclare is known for his personable approach, attention to client care, focus and flexibility in all areas of his practice. He is a determined advocate who prioritises the interests of his clients as much as possible. His advocacy experience extends over 5 years from April 2007.

He is direct / public access qualified and is happy to take instructions from businesses (commercial, civil litigation and employment law work) and HR professionals in relation to employment tribunal matters.


Fast & Multi-Track trials
Interlocutory hearings
Advice and pleadings
Employment Tribunal
Employment Appeal Tribunal
Mediation representation

Montclare provides representation in all of Clerksroom’s practice areas including:

Civil Litigation & Advocacy (RTA/PI/Credit Hire Claims)
Landlord & Tenant (Commercial & Residential)
Family (Children & Matrimonial Finance)


Comments from instructing solicitors include:

“Montclare provided a great service, dealing well with clients and giving excellent advice.”

“Montclare was instructed to attend Court in a straight forward, simple matter which he still dealt with in a very professional and efficient manner. When in discussion with Montclare he was always very polite and was also very quick in returning calls and reporting the outcome of the trial. I would recommend Montclare to colleagues.”

“Thats great news, thank you for your services in this matter.”

“Many thanks for this speedy work” (Solicitor comments regarding written work)

“That’s wonderful. Many thanks Monty.”

“Stellar effort! Very pleased with the outcome.”

“Many thanks for representing the client at today’s hearing. I can confirm that the client was very happy with your expertise and competence.”

“Thank You, Montclare looks like you did a fine job……..”

Results in 2012 include:

Full recovery of all costs incurred of over £12,000 on a fast track matter for instructing solicitors
Successful skeleton argument dealing with cpr 27.14(2)(g) to assist with recovery of costs for unreasonable conduct
Numerous victories for both Defendants and Claimants in relation to personal injury, road traffic accident and credit hire matters
Successful CFA personal injury matter
Judgment obtained on behalf of major security company client
Awaiting judgments in relation to:

Multi-day employment tribunal matter
Other employment tribunal matters dealing with unfair dismissal, breach of contract, frustration, discrimination, wasted costs and equitable jurisdiction.

Why choose Montclare as your barrister?

Intellectual heavyweight and commercially focused – Having graduated with a first class honours degree in law, he is down to earth and personable and takes a practical and commercial approach to legal problems.

The big picture – He has experience of dealing with cases from initial instruction, drafting pleadings to final hearing.

Expertise with flexibility – He has wide advocacy experience and is open to receiving instructions in all of Clerksroom’s areas of expertise. He has been instructed by residential associations and private landlords in a number of possession hearings and has undertaken civil litigation matters in addition to several instructions as an employment law advocate.

Flexible fees – Open to a range of fee options to suit client needs.

Available across the UK – Montclare is happy to travel nationally (and internationally) and has appeared in courts and tribunals from Southampton to Manchester, often on short notice.

Areas of expertise

Employment Law

Montclare’s advocacy saved one business over £150,000. This is one of his major areas of expertise. He has extensive 360 degree HR knowledge with particular expertise in Absence / Performance Management, disciplinary, grievance and incapacity procedures, Parental Leave / Flexible working legislation, Agency Workers Regulations, Equality, TUPE, Redundancy, Unfair Dismissal and Public Interest Disclosure matters. His practice covers the full range of contentious and non-contentious work.

He has negotiated favourable settlements for Respondents, developed processes in organisations from contract and policies formation, through to advice on the delivery of employee relations procedures and represented businesses in the Employment Tribunal. Appearances have included all London tribunals and others across the UK.

Commercial & Civil Litigation

Montclare has appeared in court on behalf of both Claimants and Defendants, assisting with recovery of damages / debts and dealing with breach of contract claims.

Landlord and Tenant (Commercial and Residential)

Montclare has appeared in many possession and forfeiture proceedings. He has also deal with occupiers liability matters.

Leasehold Enfranchisement

Montclare has advised on leasehold enfranchisement proceedings and trained under one of the contributors to the Leasehold Reform, Housing and Urban Development Act 1993.

Regulatory & Disciplinary Offences

Montclare has appeared before the Nursing and Midwifery Council and is developing his practice in other regulatory areas.

Appellate Work

Montclare has appeared before the Employment Appeal Tribunal.
He is currently awaiting instructions in relation to a case to be heard before the European Court of Human Rights, further to his successful advocacy at first instance level in the matter.

Road Traffic Act (RTA) & Motoring Offences – Privately Funded

Montclare has developed a minor niche private practice in Road Traffic Offences. Results in 2010/2011 included;

Persuading CPS to drop driving without due care and attention/ mobile phone charges against taxi driver client.

– Successfully arguing mitigation grounds resulting in a 50% reduction in disqualification for a client charged with a drink driving offence

– Successfully requesting the postponement of a hearing, without additional penalty, for a client who was out of the country despite previous failure to attend

Prior to coming to the Bar Montclare had extensive experience in the legal profession ranging from 1998 when fresh out of school he took an early gap year before A Levels to work as a junior in an administrative capacity at a Legal 200 law firm, to more recently providing legal advice to over 800 businesses, whilst seconded to a FTSE AIM listed PLC. He has experience taking matters from initial instruction to final instance and/or settlement, having worked in various capacities in a variety of law firms and can foresee how to avoid potential obstacles well in advance due to this insight.

LLB First Class Honours Law

Outside the office
Montclare plays the piano and hammond organ.

Follow Montclare on Twitter @montycampbell
employment lawyers, barrister, barristers chamber





Guidance for businesses and members of the public on instructing Montclare as your public access Barrister



The purpose of this guide is to explain how the public access scheme works and to show how businesses and members of the public can use it to instruct Montclare.


What is public access?

Members of the public may now go directly to Montclare a Public Access Barrister without having to involve an instructing solicitor or other intermediary. In the past it was necessary for clients to use a solicitor or other recognised third party through whom Montclare would be instructed.


Although Montclare’s role remains essentially the same, businesses and members of the public may instruct Montclare directly through the public access scheme.


What are the advantages of the public access scheme?

The main advantage of the public access scheme is that it could potentially save you money whilst giving you access to the Bar, since you would be paying for Montclare only instead of Montclare and a solicitor. However, although Montclare would be able to deal with most aspects of the case, you could have to assist in some limited areas, generally with filing documents with the court. This is explained in more detail below.


Is my case suitable for public access?

Public access is available in all types of work that Montclare can do, except for work funded out of legal aid. It is most suitable for reasonably straightforward cases. It is likely to be inappropriate in cases involving children. If you are not sure whether your case would be suitable for public access, you should contact Montclare (see below) or his clerk and seek an initial view. If Montclare considers that your case would benefit from the involvement of a solicitor, he will tell you so. Montclare may choose whether or not to take a public access case. The factors which he will take into account are discussed below.


How do I make use of the public access scheme?


To use the scheme, you would have to instruct Montclare yourself. Further details of how to

do this are given in this guidance.



The public access scheme

The difference between the services offered by Montclare and a solicitor

Montclare specialises in providing expert legal advice, advocacy and the drafting of documents.



The services offered by Montclare is different from those offered by solicitors for two main



1) First the different service offered:

Montclare is trained as a specialist adviser and advocate. This means that he becomes involved where expert legal advice is needed, where documents need to be drafted for their clients to use, or for advocacy (presenting a case in court or before some other tribunal or organisation). Solicitors also give advice to and draft documents for their clients to use or may instruct Montclare to provide this service. Some solicitors also provide advocacy services to their

clients, although many prefer to instruct Montclare to do this.


2) By law, Montclare is not able to provide some of the services that solicitors offer. On the other hand, some solicitors do not themselves provide advocacy services. At present only a solicitor may conduct litigation and take the formal steps that are necessary to progress and action. Montclare will advise you if he considers that anything you want done is something that only a solicitor can provide.




Some examples of work which Montclare is allowed to do:

a) Montclare may appear on your behalf at Court.

b) Montclare may give you legal advice.

c) Montclare may draft documents for you, such as a will.

d) Montclare may advise you on the formal steps which need to be taken in proceedings

before a court or other organisation and draft formal documents for use in those


e) Montclare may draft and send letters for you on his Chambers’ headed paper.

f) If a witness statement from you is required in proceedings, Montclare may prepare that

statement from what you tell him or her. Montclare may also help to prepare witness statements from another person based on the information which that person has provided.

g) Where a case requires an expert witness (for example, a surveyor), Montclare may advise you on the choice of a suitable expert and may draft a letter of instruction which you

can then send to the expert as a letter from you on your own notepaper.




What Montclare cannot do on your behalf:

The following are examples of work that Montclare is not allowed to do:

a) Montclare cannot issue proceedings on your behalf or to issue other applications or to take other formal steps in court or other proceedings. You would have to send the documents to the court, although Montclare could help prepare them for you.

b) Montclare is not allowed to instruct an expert witness on your behalf.

c) Montclare is not allowed to take responsibility for the handling of clients’ affairs, or to handle clients’ money.


Is my case suitable for public access?

In considering whether your case is suitable for Public access, Montclare is likely to take

into account

a) The nature of the work which you wish him or her to undertake

b) Your ability to deal with any aspects of the case which would normally be carried out by a

solicitor that cannot be covered by Montclare.

Much depends on the circumstances of your case. Here are some possibilities:

a) Montclare might decide that your case is suitable for public access and that there is no

need for the involvement of a solicitor. If circumstances change, Montclare may have to advise you that a solicitor will need to be instructed.

b) Although your case may become unsuitable for public access in the future, it is suitable

for public access for the time being. In such a case, Montclare will inform you

i) of the work which is suitable for public access

ii) the likely point at which your case will become unsuitable for public access and

iii) that he will have to withdraw at that stage if you do not instruct a solicitor.

c) Your case is such that (whether because of its complexity, or because of the stage which

it has reached) it is not suitable for public access and that a solicitor is required. In this situation, you should be told by Montclare why your case is not suitable and that he would be prepared to act for you if instructed by a solicitor. In such circumstances you can ask Montclare to recommend a suitable solicitor to you. If Montclare decides to accept your instructions, you will be sent a client care letter.


Is Montclare obliged to accept public access work?


Montclare may choose whether or not to accept public access work. This choice is restricted

in that it is impermissible to refuse to take on a case for specific reasons, relating to



When deciding whether to accept instructions in a case, Montclare must consider whether that case is suitable for public access. If he she decides that it is not suitable, he must decline the instructions. Throughout the case, Montclare remains under a continuing

duty to consider whether a case remains suitable for public access, and he must refuse to continue to act on a public access basis if it is no longer suitable.


Does a Barrister need special training to take public access work?


Barristers must satisfy a number of conditions before they can accept public access work.

Subject to limited exceptions, before a Barrister is permitted to accept public access work he

or she must have:

a) practised for a total of three years following the completion of training

b) attended a “public access” training course approved by the Bar Standards Board and

c) given certain notices which are required to be given by the Bar Code of Conduct.


Or received exemption from (a) and (b) due to a similar level of experience


Instructing a public access Barrister




How do I instruct Montclare?

Try to clarify in your own mind the nature of your problem and what it is that you want Montclare to do.

Telephone Montclare’s clerking team on 0845 083 3000 Montclare practises and tell them that you wish to instruct Montclare directly.


He will tell you what to do next. You will have to explain that you wish to instruct Montclare directly and the nature of the work which you wish Montclare to undertake for you. You may be asked to send written instructions, setting out the factual background to your case and what it is that you want Montclare to do. Alternatively, Montclare may decide that it would be appropriate in the first instance to discuss the matter with you on the telephone or at a preliminary meeting to decide on the best way forward.


Proof of your identity

In certain circumstances, Montclare will be required by law to carry out certain identification procedures. These must be followed as soon as reasonably practicable after you have first made contact with Montclare – it is likely that this will take place after you make the initial contact described above. Whether these procedures apply and, if so, how they should be followed, need to be considered by Montclare when you first make contact.


Where the procedure applies, Montclare will require satisfactory evidence of your identity –

that is, proof of your name, date of birth and current address. The type of evidence required will depend on the circumstances. For example:


a) If you are acting as an individual, you may be required to produce in person your current passport or other national identity card or a new form of driving licence (with a photograph)

together with a recent utility bill, bank or building society statement.


b) If you are acting on behalf of a company, you will need to produce a certified copy of the Certificate of Incorporation, the latest accounts filed at Companies House and evidence that you are authorised to act on behalf of the company.


To carry out the procedures properly, Montclare may well have to have a meeting with

you. You will be told what to bring to that meeting. Montclare is required to take copies of

the documents which you bring and to retain those copies for 5 years.


What happens next?

Montclare will have to decide whether your case is suitable for public access. He will charge you for this Preliminary work.



If your case is suitable for public access, you and Montclare will have to agree the terms on which he is to carry out the work. Those terms will be set out in a client care letter which will be sent to you.

If your case is not suitable for public access, Montclare will tell you so. If you wish, he may recommend a suitable solicitor for you to instruct. Some cases obviously will be suitable for public access. In such a case, and provided that:


(a) Montclare is willing to undertake the work, (b) agreement can be reached about the  charge which will be made for that work and (c) where appropriate, you have provided satisfactory proof of your identity, your instructions will be accepted and a client care letter will be sent to you. The role and importance of the client care letter is described below.


In other cases, Montclare may suggest that you have a preliminary meeting before deciding whether or not to proceed with the instructions.

It is also open to Montclare to accept instructions to read the papers for which there will be a charge and advise whether or not he is able to perform the work which you wish him or her to undertake.


The client care letter

The client care letter records the terms of the agreement between you and Montclare. It is a very important document and you must read it carefully.

It contains a description of the work to be undertaken, the basis on which you will be charged for that work, and the other terms of the agreement between you and Montclare. If you are unclear about, or disagree with any of the contents of that letter, you must raise your concerns with Montclare immediately.


How will I be charged?

Montclare usually charges according to the complexity of the case

and the length of time involved in dealing with it. It is important that the cost to you, and the stage at which the fee is payable is agreed at the outset, and that the terms of the agreement are clear to both you and Montclare.


There are no formal scales of fees for Montclare’s work. Montclare will charge according to the complexity and length of time involved in any particular matter. The amount to be charged for any particular piece of work, and when the fee becomes payable, is a matter for negotiation between you, Montclare and his clerk.


It is very important that you and Montclare agree from the outset the basis upon which you are to be charged for work and the time at which the fee will become payable.



Where the fee relates to a hearing, Montclare is entitled to the fee, whether or not the hearing goes ahead.


In other cases (whether for a conference or for paperwork), it may be possible to fix a fee in advance for the work. However, that will not be possible in every case. Where it is not possible, you should ask for an estimate. You may be able to agree with Montclare that

there should be a “ceiling” on the fee charged for a particular piece of work.


If you agree a fee in advance of the work being done, then Montclare will require that fee to be paid before carrying out the work. Where a fee is not fixed in advance and the work involves the production of paperwork (for example, the drafting of a contract), Montclare will require you to pay for the work after he has completed it and before releasing it to you.


Although conditional fee agreements (agreements under which a fee becomes payable only in the event of success in a case) are possible, it is unlikely that Montclare will be willing or able to undertake public access work on a conditional fee basis, save in very rare cases.


Montclare is required to keep sufficient records to justify the fees that he is charging. You are entitled to ask for details to justify the fee that you are being charged.




What if I qualify or may qualify for public funding?

If you could be eligible for public funding, Montclare has to advise you to approach a solicitor. It is unlikely that Montclare will be able to carry out the means assessment required to establish whether you would qualify for public funding. Further, at present, Montclare is not

able to apply to the Legal Services Commission for public funding on your behalf. If it appears that you may qualify for public funding, therefore, Montclare has to advise you to approach a solicitor with a franchise from the legal Services Commission to investigate this



Can Montclare stop acting for me after he has accepted my instructions?

In public access cases, Montclare must stop acting for you if he considers that the case is no longer suitable for public access. Montclare may be able to assist if, as aconsequence of no longer continuing to act for you, you will or may experience difficulties in

relation to an imminent hearing.

In public access cases, Montclare is also required to cease to act where he has formed the view that it is in your interests or the interests of justice that you instruct a solicitor or other professional person. In such cases:


a) Montclare is under a continuing duty to consider whether your case remains a suitable case for public access. If he forms the view that it is not, you will be advised of this fact. If you then instruct a solicitor or Montclare, he may continue to act for you. If you do not, Montclare must cease to act for you.



9 b) If you are a party to proceedings in which a hearing is imminent, and you are likely to

have difficulty in finding a solicitor in time for the hearing, your Montclare should provide you

with such assistance as is proper to protect your position. Although Montclare may notcontinue to work for you on a public access basis, he may be able to assist you by,

for example:


i) Drafting letters for you to send, asking for an adjournment of the hearing

ii) Writing a letter to the court in support of that application, explaining that he has had

to withdraw and, if appropriate, the reasons for it

iii) Assisting you to find solicitors.


Can I instruct Montclare directly when I have already instructed solicitors?


You may instruct Montclare directly even though you have already instructed solicitors. If you do so, Montclare will still have to consider whether he should accept your instructions. However, the fact that you have retained solicitors is not of itself a reason for refusing to accept your instructions; nor may Montclare contact your solicitors without your

permission. However, there may be cases (for example, where your case involves existing litigation) where Montclare will refuse to accept your instructions unless you give him or her permission to contact and liaise with your solicitors and you also give your solicitors the necessary permission to provide information to Montclare.


Confidentiality and compulsory disclosure of information

Montclare will be under a strict professional duty to keep your affairs confidential. Legal professional privilege protects your communications with Montclare from disclosure. The

only exception is that any lawyer may be required by law to disclose information to governmental or other regulatory authorities, and to do so without first obtaining your consent to such disclosure or telling you that he has made it.


For further details on instructing Montclare email him campbell@clerksroom.com


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Garden Leave / Gardening Leave

December 9, 2011
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In order to set out the law in relation to Garden Leave, I will start by providing a definition of Garden leave in the context of employment contracts. I will then go on to consider to what extent they are enforceable, dealing particularly when compared to the enforceability of restraint of trade clauses. Further I shall consider methods of enforcing garden leave clauses.

Smith & Thomas define gardening leave as a scenario where to protect a company from competition, where an employee is leaving who may possess sensitive commercial information and relationships with company clients, a clause in the employee’s contract obligates them to stay at home and not work for a very long period of time on full pay. Further they argue that the time period of Gardening leave varies between a 6 months to year long notice period and throughout this time there is an implied term that the employee will not work in competition or breach confidentiality.

The key case which sets out law dealing with the limitations on garden leave is William Hill Organisation Ltd v Tucker [1998] IRLR 313 it was held that in the absence of a contract provision prescribing a period of Garden leave where an employee benefits from doing the work professionally aside from economic benefits her receives. The court relied on the ratio in Turner v Sawdon & Co . [l90l] 2 KB 653 which was approved by the House of Lords in Herbert Clayton and Jack Waller Ltd v Oliver [l930] AC 209 in that the term “employ” needed to be given a flexible meaning on one hand provision of work would not necessarily have to be guaranteed. However on the other hand where the nature of the profession of the employee requires that he needs to be in work to progress his career, such as public displays from an actor, than, if work were not provided the employer would likely be in breach of the contract of employment.

There was a similar ratio in Langston v AUEW (No.2) [l974] ICR 5l0 at page 52l. and also Herbert Clayton and Jack Waller v Oliver [l930] A.C. 209 as regards theatrical performers, following the line of reasoning in Fechter v Montgomery (l863) 33 Beav. 22, Marbe v George Edwardes (Daly’s Theatre) Ltd [l928] l KB 269, Herbert Clayton and Jack Waller Ltd v Oliver [l930] AC 209, Driscoll v Australian RMSN Co . (l859) l F & F 458), Collier v Sunday Referee Publishing Co. Ltd [l940] 2 KB 647, Addis v Gramophone Co Ltd [l909] AC, Devonald v Rosser [l906] 2 KB 728 and Addis v Gramophone Co Ltd [l909] AC 488. The courts have not applied the same ratio where contracts have been indefinite for a fixed wage as evidenced in cases such as Turner v Sawdon & Co [l90l] 2 KB 653 and Collier v Sunday Referee Publishing Co. Ltd [l940] 2 KB 647.

Where the parties contract that an employer does not have to provide work, there is no obligation to provide work as held in Provident Financial Group v Hayward [l989] ICR l60. As regards obtaining injunctions to enforce garden leave clauses it was held in William Hill Organisation Ltd v Tucker [1998] IRLR 313 the court referred to Credit Suisse v Armstrong [l996] ICR 882, 892 in arguing that it was simpler to do than in relation to restraint of trade clauses.

It was held in Devonald v Rosser & Sons [l906] 2 K.B. 728 in addition to the money remuneration for doing work, there is an obligation that a reasonable amount or work be provided. However there is an exception to this as held in Turner v Sawdon & Co. [l90l] 2 K.B. 653 where there is no particular reason that consideration should consist of anything apart from pay.


In Evening Standard Co Ltd v Henderson [1987] ICR 588, [1987] IRLR 64 CA it was held that injunctions could be utilised to prevent employees breaching garden leave clauses. The court took into account in this case that there was a continuing relationship inclusive of trust and confidence and in this context it would be in the interests of justice to grant the injunction. There was a similar ratio in Euro Brokers Ltd v Rabey [1995] IRLR 206 regarding a money broker. There has also been support from this point of view from academics such as Smith, Thomas, Freedland and Gouldring.3 In Warner Bros, v. Nelson (1937) 1 K.B. 209 it was held that an employee could not be forced by way of injunction to continue working for an employer, however this was case was distinguished in Evening Standard Co Ltd v Henderson [1987] ICR 588 the issue was as to preventing the claimant from working for another party in the garden leave notice period. However where there is little evidence that an employer will suffer any detriment if an employee works for a competitor towards the end of a garden leave notice period, as held in Provident Financial Group plc v Hayward [1989] ICR 160, [1989] IRLR 84 an injunction will generally be refused in those circumstances.

However in Symbian Ltd v Christiensen [2001] IRLR 77 CA the following anti-competitive/confidentiality clause was construed to apply throughout the term of the contract which was deemed to include the gardening clause notice period. “shall not during the term of this Agreement (except as a representative of the Group or with the prior consent in writing of the Board such consent not to be unreasonably withheld) be directly or indirectly engaged or concerned or interested in any capacity in any trade business or occupation whatsoever other than the business of the Group whether or not competing in any material respect with the Business.” In Credit Suisse Asset Management Ltd v Armstrong [1996] ICR 882, [1996] IRLR 450 CA it was held that where there is a restraint of trade clause in addition to a gardening leave clause in a contract, they must be construed particularly reasonably.


The length of a garden leave notice period also affects whether it will be enforceable or not. It was held in GFI Group Inc v Eaglestone [1994] IRLR 119 that a garden leave notice period of 20 weeks should be reduced to a more reasonable length of 13 weeks.

In Cantor Fitzgerald International v George [2002] IRLR 867 it was held employers should not impose excessive Garden leave notice periods in employment contracts.

Payment during Garden Leave notice period

It was held in Clark v Nomura International plc [2000] IRLR 766 that the payment during a Garden leave notice period should consist of all the money and other benefits the employee would have had he been working during the period of notice.

It was held in Fulham Football Club (1987) Ltd v Jean Tigana [2005] EWCA Civ 895, [2004] EWHC 2585 QB that the parities to a contract containing a garden leave clause can limit the contractual obligations of the employee.

In another football case it was held that Crystal Palace FC (2000) Ltd v Stephen Bruce[2001] that knowledge of contract negotiations could be a ground on which an employer could rely to justify a gardening leave clause so that a rival football club would not have access to sensitive information.

In Sendo Holdings plc (in administration) v Brogan [2005] EWHC 2040 (QB) it was held that companies in administration upon pre-empting a sale of the business were justified in enforcing garden-leave clauses, even when they had no immediate competitive interests to protect.

Relationship between Restraint of trade and Gardening leave clauses

In TFS Derivatives Ltd. v Morgan [2004] EWHC 3181 it was held by Justice Cox that the presence of a gardening leave clause did not necessarily mean there was no need for a restraint of trade clause.


As regards where an employee has been involved in misconduct in SG & R Valuation Service Co v. Boudrais & others, it was held [2008] EWHC 1340 (QB) that “In my judgment, therefore, the law is clear. 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, demonstrated in a serious way that they are
not ready or willing to work, or to put it another way, that they have not rendered it
impossible or reasonably impracticable for the employer to provide work. The
breach of contract or other duty must constitute wrongdoing, by reason of which
they will profit or potentially profit. In such circumstances, there is no obligation
on the employer to provide work, although the contract of employment is ongoing.
This is not an implied term in the employment contract but is a qualification to the
legal construct, the right to work.” Therefore in the absence of restraint of trade clause providing the above criteria are fulfilled an employer can send an employee home until their notice period expires. This ratio was followed in Gogay v. Hertfordshire CC [2000] IRLR 703 and also more recently in Standard Life Healthcare Ltd v. Gorman & others [2009] EWHC 791.

One can see that the case law in this area is very varied and that there are two broad categories of cases. On the one hand we have the cases where a gardening clause is not within the contract and on the other hand those where there is no gardening leave clause. What is clear is that an employee falls within an obligation to observe the reasonable terms of his contract and where there is no gardening leave clause the courts have been less inclined to impose an implied obligation. The scope of reasonableness in this context extends to the nature of any gardening leave clauses and particularly their length. It is clear the courts do not wish for clauses to be unreasonable and this trend of judicial interpretation appears to extend from the courts’ experience dealing with restraint of trade cases such as Herbert Morris Ltd v Saxelby [1916] 1 AC 688 and Allied Dunbar (Frank Weisinger) Ltd v Weisinger [1988] IRLR 60. With the Gardening leave option, although it may be expensive for employers in the short term as regards the remuneration at the same level as when the employee is at the work place, in the long term by protecting the commercial interests of the organisation, this may well be a small price to pay. However as we have seen above there are a number of limitations to the applicability of garden leave clauses. This is most notable where due to the nature of the employee’s profession unless they are continually working their skills may suffer. This means that even if a garden leave clause is present with a contract of employment, is may be null and void for invalidity. A practical option for an employer in that scenario would be to provide the employee with alternate work, in an environment, where the commercial interests of the company are not put at risk. This appears to be a simple solution, however it may not always be practical in the circumstances. Nevertheless it remains. As regards remedies, where an employee may leave an organisation in possession of commercial information, the damage caused to the company may be beyond immediate quantification. Arguably the provision of an injunction as a remedy provides a suitable method of enforcement. However this comes with its own limitations and an employer is faced with proving the grounds for the granting of an injunction pursuant to American Cyanamid Co v. Ethicon Ltd [2001] 1 WLR 194 in addition to those associated with providing justification for the argument that the gardening leave clause is reasonable. As we can see the case law with reference to Garden Leave is complex but enlightening.

Garden Leave Developed

The Law

The starting point is that employees owe duties to their employer of good faith and fidelity, not without reasonable and proper cause to act in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between them and the employer as held in Malik v Bank of Credit and Commerce International SA (in liquidation) [1998] AC 20 They also have a duty not to misuse confidential information.

Where employees are senior they have additional fiduciary responsibilities to their employers as held in University of Nottingham v Fishel [2000] ICR 1462. In order to protect the interests of the business in the absence of a gardening leave clause, it would be advisable for an employer to seek a prohibitory injunction. It was held in SG & R Valuation Service Co v. Boudrais & others applying William Hill Organisation Ltd v Tucker [1999] ICR 291, that where the defendants’ work is specialised and they have substantial professional abilities and occupy a senior position in the company it would not be appropriate to deny them work. In this case the applicable notice period was for three months and it was deemed due to their skills, too long a time to deprive them of work. Pursuant to cases such as William Hill Organisation Ltd v Tucker [1999] ICR 291 and Collier v Sunday Referee Publishing Co [1940] KB 647 where employees have been denied the right to work this may amount to a repudiatory breach of contract, in relation to which the employee may consider the employment contract ended. It was held in Miles v Wakefield Metropolitan Borough Council [1987] AC 539 that where employees are asserting a right to work they must demonstrate a readiness and willingness to work.

In SG & R Valuation Service Co v. Boudrais & others it was held that Employers are also under an obligation as set out by Harvey on Industrial Relations and Employment Law. At paragraph [563]-[570] and as held in Langston v Amalgamated Union of Engineering Workers [1974] ICR 180 to not “unreasonably withhold work when there is work available to be done”.

Further in SG & R Valuation Service Co v. Boudrais & others4 it was held applying Thomas Marshall (Exports) Ltd v Guinle [1979] 1 Ch 227 that where an employee has committed an act of misconduct, their right to work may not be practicably applied and therefore this right may not be available to them in that context. The misconduct should amount to a breach of contract for this exception to apply where a right to work has been determined. It was held that “ the first and second defendants, in my judgment, remain employed by the claimant. Until the notice period elapses they therefore remain subject to continuing contractual and other duties. In keeping them away from work there has been no repudiatory breach by the claimant for the first and second defendants to accept, as they purported to do in the letter of their lawyers of 16th April. There was reasonable and proper cause for the claimant to make its demand that they remain at home.”

As regards the mutuality of obligation and the sequence of mutual repudiatory breaches having considered RDF Media Group plc v Clements [2007] EWHC 2892; [2008] IRLR 207, Bremer Vulcan Schiffbau und Maschinenfabrik v South India Shipping Corp [1981] AC 909 and Paal Wilson v Partenreederei Hannah Blumenthal [1983] 1 AC 854 in SG & R Valuation Service Co v. Boudrais & others it was held that in the particular circumstance sequential breaches had occurred therefore, unlike the distinguishing features in the above cases, an employee would be able to choose a particular repudiatory breach of the employer to rely, however this would not have been the case had the employee been responsible for destroying the mutual trust and confidence in the first place.

In SG & R Valuation Service Co v. Boudrais & others it was held that an employer can be entitled to springboard relief. The term Springboard as discussed in Roger Bullivant Ltd v Ellis [1987] ICR 464 refers to the ability of employees in possession of confidential information to make a greater effective use of the information potentially detrimentally to a claimant, which may not be possible if an injunction was granted to prevent them acting on the basis of the confidential information. As held in Midas IT Services v Opus Portfolio Ltd 21st December 1999, springboard relief is a remedy which enables an employer “to deprive wrongdoers of the fruits of their breach of duty and to restore the position to before the wrongdoing”. However this type of relief will not be available where the confidential information has been handed back to an employer.

On the basis as held in Provident Group plc v Hayward [1989] ICR 160 where a period of notice is not excessive, employers are entitled to rely on the notice clause in an employment contract. Another feature which should not be present is that the application of the notice clause amount to restraint of trade or generally anti-competitive nor anything more radical than the purpose of the notice clause, requiring employees to work out the duration of the notice period that they contracted to do.

It was also held in this case that where “The defendants are protected by the undertakings to pay their salaries and the cross-undertakings as to damages. There can be no legitimate expectation that the defendants would have had work during the notice period.” This being in the context that the defendants’ behaviour in this case in appropriating confidential information and having formed an intention whilst working for the Claimant to set up in competition against them, they could not expect to work out there notice period, where they would have had access to commercial information which would aid them in their industrial espionage campaign. Finally it was held that “The claimant should not be expected to lose the benefit of the notice period and the sterilisation of the defendants’ activity during that period.” Here we can see that the aim of this statement was to protect the employer. The law is very clear on the matter as regards the effect of misconduct determining whether an employee is entitled to come and do work in the employer’s property during the notice period.

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