However as employment solicitor, Andrew Crisp, explains, the courts will enforce restrictive covenants in the right circumstances.
In a recent case, Mr Coppage found out to his cost that a clause that prevented him from poaching customers from his former employer was indeed enforceable. He was ordered to pay Safety Net Security Limited the sum of £50,000 in damages.
Are all restrictive covenants enforceable?
Restrictive covenants are only enforceable to the extent that they are necessary to protect the business interests of the employer. If the restriction is too broad, it will be void.
An employment solicitor will help you to pitch your restrictive covenants at a level that the courts are likely to uphold.
Generally, restrictions against poaching customers should be limited to those customers with whom the employee had contact during their employment. This is because those are the customers that the employee would have most influence over.
Mr Coppage tried to argue that a restriction that prevented him from poaching any customers at all from his former employer was too broad. He had never met some of the customers.
However, the court said that it was not too broad because it only lasted for 6 months.
What you will need to discuss with your employment solicitor
Have a think about whether you need to include restrictive covenants in your employment contracts. They are more likely to be enforceable for senior employees than for those with less responsibility and influence.
Whether the restrictions are enforceable will depend on whether they are necessary to protect your legitimate business interests.
You should take professional advice from an employment solicitor on any restrictions that you want to include in your employment contracts. If they’re not restrictive enough, you won’t be protected. If they’re too restrictive, they won’t be enforceable.