Pictured above: Mike Wakeling

Gardening leave is more akin to the law of the jungle, an expert has warned.

Mike Wakeling, head of the dispute resolution department at Lodders Solicitors in Stratford-upon-Avon, says such restrictive covenants in employment contracts can be difficult to make stick.

Because ultimately the terms have to be reasonable and what is reasonable or not will be argued over as long as courts exist.

Restrictive covenants are used for a variety of reasons, including preventing ex-employees from working for a competitor, recruiting former colleagues or using confidential information.

Mr Wakeling said: "As for 'being sent on garden leave' - a favourite with law and accountancy firms - it is designed to require the employee to spend all or part of their notice period at home while continuing to receive salary and benefits, so restricting access to confidential information and clients.

"It requires a specific clause in a contract and is also subject to a test of reasonableness with regard to its duration. Now there is much more movement of staff between firms garden leave rarely lasts more than a few weeks or months, but a year is not unheard of."

Typically, to get a covenant upheld and enforced, the ex-employer has to convince a court that it is designed to protect his legitimate business interests and extends no further than is necessary to protect those interests.

Mr Wakeling noted: "For a restriction to be reasonable it must not be drafted too widely. It is unlikely that a wide geographical area will be acceptable and, as a general rule, a restriction for more than six months will be difficult to justify.

"The typical example is that of a hairdresser where a geographical restriction might be reasonable in a rural area but not in a city.

"Courts will be reluctant to deny somebody the ability to work.

"Ultimately restrictive covenants have a touch of the law of the jungle about them - the issues will vary considerably from case to case and from employee to employee. And judges are different animals so it's not necessarily a question of who roars the loudest."

Covenants which seek to prevent any form of competition with a former employer are rarely allowed to stand.

And where an employer claims damages for breach of a restrictive covenant in an employment contract, they will need to show some resulting loss.

However,the poaching of contracts can be hard to prove.

"All in all it can be a bit hit and miss and much depends on how good your lawyer is," noted Mr Wakeling.

For more information about Lodders, please visit their website here: www.lodders.co.uk