Gardening leave: not the bed of roses it seems

When Candida Beevers was forced to take three months' paid leave before leaving Hammond Suddards to join Ashurst Morris Crisp her colleagues thought she was mad to complain.

But Beevers, who was only two years qualified at the time, said she found it very difficult to adjust. “If I'd wanted to take a sabbatical I would have planned it. It was a shock to my system suddenly having nothing to do from being so busy.”

Similarly, when Leeds solicitor Sean Lippell found himself on the front page of last week's The Lawyer for being forced by his current firm, Pinsent Curtis, to take 12 months' gardening leave, he joked that his next media flirtation was likely to be with House & Garden.

Employment lawyers and legal recruitment consultants have reported a huge increase in the use by law firms of gardening leave clauses, which up until now have been more closely associated with industry.

“The increasing use of gardening leave clauses in both employment contracts and partnership deeds indicates that lawyers are not immune to hard business practices,” said Sue Nickson, an employment lawyer at Hammond Suddards in Leeds.

The idea behind putting the solicitor out of action is to sever contacts between the solicitor and his clients in an attempt to prevent the firm losing important business.

But Stuart Benson, who had to take five months' extended gardening leave before joining Dibb Lupton Broomhead from Turner Kenneth Brown, said: “In my experience, if you have a good close relationship with clients they do not forget you.”

Nick Painter, who also left Pinsents for Garretts but without having to take gardening leave, admitted to confusion over the apparently arbitrary way gardening leave contracts were deployed by firms. “You can never predict which lawyers will be forced to take it and how long it will be.”

Painter argues that gardening leave is not only anti-competitive, but also against the long-term interests of the firm that enforces it.

“Clients are loyal to individuals, not firms. If firms impose these kinds of restrictions on their partners they are also restricting their clients, which is not good practice. Clients are likely to get frustrated and either wait for the lawyer to join another firm or go elsewhere.”

Janet Gaymer, an employment lawyer at Simmons & Simmons, said: “Gardening leave must be used extremely carefully. It cannot be used automatically and is not always lawful. In cases which end up in court, the judge has to be satisfied that it is not anti-competitive and that it does not smack of slavery.”

Gaymer said some law firms such as Lovell White Durrant had become well known for using it. Joint managing partner Michael Maunsell would only comment: “We deal with each case individually.”

David Cockburn, employment lawyer at Pattinson & Brewer, said: “The message is that the legal profession is adopting an increasingly aggressive attitude.”