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Employment Law for Businesses

Drafting & Enforcing Restrictive Employment Covenants

Susie Al-Qassab
Susie Al‑Qassab
Partner
Homa Wilson
Homa Wilson
Partner
Neil Emery
Partner

If your business has employees who deal closely with clients or have access to confidential and proprietary information, you’ll likely want to try to restrict them from being able to leave and go straight to a competitor or solicit your clients. Without express provisions in the form of restrictive covenants in their employment contracts, you’ll have minimal options to protect your business when key employees leave.

Legal advice is, therefore, essential to drafting, editing and enforcing restrictive covenants. As an employer, you must show that the covenant goes no further than is reasonably necessary to protect their business.

We advise employers on drafting enforceable covenants and seek urgent court injunctions to prevent former staff from using confidential information or soliciting clients. 

We recommend that you seek advice when you are taking on new employees. The fair guidance we offer will be tailored to your individual needs and requirements as we know that every business is different and will face different challenges in the workplace and beyond.

Why choose Hodge Jones & Allen Solicitors?

We’re experienced employment law specialists and will help prepare bespoke, tailored restrictions for new joiners and promoted employees to maximise the prospects of successful enforcement. We’ll also act quickly to enforce post-termination restrictions and sue for damages where necessary.

We always have your firm’s interests in mind. Wherever possible, we’ll help you take preventive measures, so that court hearings become a last resort. That said, we won’t hesitate to take swift and decisive action through the courts if your commercial interests demand it.

Spending some time and money on well-drafted and bespoke post-termination restrictions is a worthwhile investment because of the protection they can provide your business and information. 

They should be professionally drafted to have maximum prospects of being enforceable. Without these restrictions, businesses can and have been ruined. We’ll provide clear and upfront cost information to ensure that you remain in control of your costs at every stage.

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Featured cases

Drafting letter after breach of non-compete

Writing a letter before action to a former employee of our client, a marine-tech company, who was proposing to join a competitor in breach of his non-compete. After robust correspondence, and steps taken to protect the client’s legal position, we reached a satisfactory settlement based on a shorter restriction period.

Drafted post-termination restriction

Drafting bespoke post-termination restrictions for a private hospital concerned with staff leaving and setting up a similar service nearby.

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Frequently asked questions

Are non-compete restrictions enforceable?

Non-competes are the most difficult form of restrictive covenant to enforce, but they’re not impossible. Enforceability depends on the specific factual circumstances and the scope of the restriction.

They can be enforced if they’re carefully and clearly drafted and are necessary to protect legitimate business interests. Determining this will usually involve an assessment of why a non-compete is needed in additional to other restrictions, such as non-poaching of clients. The narrower or shorter they are in terms of duration, scope and reach, the more likely they are to be enforceable.

My Sales Director has been on the same contract since she started 10 years ago. Are the restrictions still enforceable?

When considering the reasonableness and enforceability of restrictions, the courts will only have regard to the employee’s job title and seniority at the time of entering them.

So, although it may be reasonable in her current role of Sales Director to have a 12-month non-dealing with clients restriction, if she signed up to this restriction 10 years ago as a customer service adviser, the restriction is unlikely to be enforceable. Post-termination restrictions should be reviewed and updated when employees are promoted or change roles.

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