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I am currently on a garden leave while still on my company's payroll.

I have the idea of developing an app, which I can add on my portfolio which can also increase my skills.

I live currently in the Netherlands, and my contract mentions:

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From this clause, it is not clear to me what happens if I develop an app during my garden leave. If I sell it, could they claim it as their own property or I will retain every rights?

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    You need to talk to an actual lawyer. I think you could make a reasonable claim that anything done on gardening leave is not "within the performance of your duties", but that's going to depend on both the jurisdiction you are in and the jurisdiction of your employer/your contract. Aug 19, 2022 at 9:45
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    What is "garden leave" ? I am in the US, and not familiar with that expression. Aug 19, 2022 at 19:34
  • @BohBoh - Is the development of an application, like the one you want to write, "within your defined duties" at your employer? If you are on garden leave, then I take that as, you are not performing your regular duties daily.
    – Donald
    Aug 20, 2022 at 6:15
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    @Job_September_2020 - It's leave for an employee that is leaving the company, instead of having the employee come in and do unproductive work (i.e., start something but being unable to finish that task), a company might ask an employee just to stay home and pay them. It's common in the software industry, where intellectual property is difficult to protect.
    – Donald
    Aug 20, 2022 at 6:17
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    @GregoryCurrie No, I think "garden leave" is where an employee has handed in their notice, but the company does not want them working (for whatever reason, eg in case they take sensitive information away). However, they are still "on the job" as it were, but ordered to do nothing. As such, the company's contract with the employee can still apply. If I were on garden leave and developed an app that can start making money, the company could quite possibly have a claim to that app and revenues generated by it.
    – user25730
    Aug 24, 2022 at 4:53

1 Answer 1

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I would ask your employer first. It's quite obvious that most people won't take "gardening leave" in the literal sense and tend to their garden. The Article 12 isn't clear about whether you are "performing any duties" (like the duty to sit on your chair and watch TV) when on gardening leave.

So asking the employer first will either give you free hand, or tell you that they may sue you. Without asking them, you just take a risk. Even though I think they won't win a court case, it will still be a pain if they do that.

The most likely outcome is that they don't care (why should they?) and let you do what you want. If for whatever reason you performed your normal work, that would probably be theirs, but the whole point of gardening leave is that you shouldn't be able to do that.

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  • The most likely outcome IMO is that nobody dares to give a clear yes or no answer, and will insist that someone else says if it's OK. So they are going to stall until garden leave is over.
    – Philipp
    Aug 19, 2022 at 13:41
  • And if they do say yes, makes sure that you get it in writing.
    – Gh0stFish
    Aug 19, 2022 at 18:27
  • I wouldn't trust your employer to give an honest or even helpful answer. Phillip is almost certainly going to be correct. They will screw you around until leave is over. It's not in their interest to agree to waive any rights they may have over the work. Aug 24, 2022 at 5:30

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