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Is there an implied duty to provide work?

Sometimes, there is an implied duty to provide work as well as pay. This duty can be excluded by an express term. This often takes the form of a “gardening leave” clause, where an employee who has given notice to end the contract is made to work out that notice away from the workplace and without contacting clients and customers.

Whether there is an implied duty to provide work in any particular case depends on all the circumstances. Relevant factors include whether wages are linked to output or commission based, so that the employee needs to work in order to generate income, or whether an employee is at significant risk of de-skilling or losing valuable professional goodwill through being kept out of the workplace (William Hill Organisation Limited v Tucker [1998] EWCA Civ 615).

In Christie v Johnston Carmichael [2010] UKEAT/0064/09, the EAT decided that a tax accountant made to spend his three months’ notice on garden leave did not have the right to work. This meant that his employer’s decision to require him to work out his notice away from the office was not a breach of contract, even though the contract contained no express term allowing this. There was no evidence that Mr Christie would be de-skilled over the three-month period.