From time to time the question arises: is it worth having a non-compete clause in an employment contract even if it’s probably not enforceable? Non-compete clauses are popular as ever, with an estimated 68% of all employment contracts in the UK containing such restrictions, however many employers are unaware of the complications involved in using them.
A non-compete clause in an employment contract is one of the most common types of restrictive covenants. Given the nature of any typical employment, an employee is likely to have access to privileged information and relationships unlike any external competitor. A departing employee clearly has a head-start if they decide to exploit this advantage to compete with the employer later, and even more so if the employee had an influential position at the firm and the resources and capability to take business away from the firm.
Currently, our director service agreement template contains a number of restrictive covenants as standard, although we always advise customers to seek additional professional legal advice as to the appropriateness of such restrictions in their particular case. In contrast, our contract of employment template does not contain any restrictions as standard, mainly due to the difficulty of getting a court to enforce them for ‘standard’ employees.
The difficulty with non-compete clauses, from an employer’s point of view, is that as with any part of a contract of employment, employees have a number of statutory rights, regardless of what the contract says. In this case, if an employer wants to enforce a non-compete clause, they need to be able to convincingly prove in court that such clause is absolutely necessary to protect a ‘legitimate business interest’. Simply proving that the employer will suffer from ‘more competition’ is not counted as a ‘legitimate business interest’.
It is worth noting that if a non-compete clause is found to be disproportionately restrictive, a court may rule that parts of it are invalid, and the remainder is enforceable. In order to decide if or which of the non-compete clauses in a contract of employment are reasonable, a court is likely to consider the following:
Although it can be difficult to enforce non-compete clauses in a contract of employment, if such clauses are enforced either in part or in full, the consequences for the employee can be significant. An employee who breaches or intends to breach a non-compete clause, should consider the following:
If you want to see a sample of these restrictive covenants, you can take a look at our sample director service agreement page (section 20).
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