Restrictive covenants in employment contracts can be a common source of concern for individuals moving on from a role or seeking a new opportunity. These clauses are often included in employment contracts to protect the legitimate business interests of the employer. However, they may also feel restrictive or unfair to the employee, particularly when they place limitations on future employment or business activities. Understanding how to get around restrictive covenants employment is crucial to protecting your own interests while remaining compliant with the law.
What are restrictive covenants in employment?
Restrictive covenants are contractual clauses typically found in employment agreements. Their purpose is to restrict an employee’s activities both during and after their employment has ended. These restrictions are designed to protect the employer’s business, confidential information, client relationships, and workforce.
The most common types of restrictive covenants include:
- Non-compete clauses – Preventing you from working for a competitor or setting up a similar business in a specific geographical area for a defined period of time.
- Non-solicitation clauses – Preventing you from soliciting or dealing with clients, customers, or suppliers of your former employer.
- Non-poaching clauses – Preventing you from enticing or employing former colleagues to join your new business or employer.
- Confidentiality clauses – Preventing you from disclosing or using confidential information obtained through your previous employment.
Are restrictive covenants enforceable?
In general, UK courts do not automatically enforce restrictive covenants. For a covenant to be enforceable, it must protect a legitimate business interest, be reasonable in scope, and not go further than necessary to protect that interest. If an employer seeks to enforce an overly broad or vague covenant, a court may rule it unenforceable.
Each case is assessed on its specific facts, including the role of the employee, the industry in question, and the duration and geographical reach of the restriction. For example, a six-month non-compete clause may be enforceable for a senior executive with access to sensitive information, but potentially unenforceable for a junior employee with limited influence.
How you may be able to get around a restrictive covenant
Navigating around restrictive covenants is a delicate process and should be approached with caution and appropriate legal advice. Below are some of the approaches that may be considered when seeking to manage or minimise the impact of restrictive covenants in your employment contract:
Seek legal advice at an early stage
The first and most important step is to seek independent legal advice as early as possible. An employment solicitor can review your contract, assess the reasonableness and enforceability of any restrictive covenants, and advise on your options before you take any steps that could result in legal consequences.
Challenge the enforceability of the covenant
If a covenant lacks clarity, is excessive in scope, or does not protect a legitimate interest, it may be possible to have it declared unenforceable. A solicitor can assess the specific terms to determine whether they are likely to be upheld or challenged in court. In some cases, simply pointing out the legal weaknesses in a covenant may be enough to discourage an employer from attempting enforcement.
Negotiate a waiver or variation
In some situations, it may be possible to negotiate with your former employer to waive or relax the terms of a restrictive covenant. This may involve agreeing to different terms that still offer protection to the employer whilst allowing you to pursue your new role or business plans. Employers may be open to negotiation, particularly if they believe ongoing enforcement would not be commercially viable or in their best interests.
Consider the impact of garden leave
If you were placed on garden leave during your notice period, the duration of that leave may count toward the period of a post-termination restriction. In effect, the time you were not working but still receiving a salary may reduce the period during which the restrictive covenant applies. This must be carefully evaluated, as employers may argue that the restrictive covenant period begins only after your leave ends.
Look at the specific wording
Restrictive covenants must be clearly defined to be enforceable. Ambiguous wording or poorly drafted clauses could render the restriction invalid. Employment law recognises that individuals should not be unfairly prevented from earning a living, and any uncertainty over the interpretation of the covenant may be resolved in favour of the employee.
Assess whether the covenant is still relevant
If there have been significant changes to your role, responsibilities, or seniority since you signed your contract, the original covenant may no longer be appropriate or enforceable. In such circumstances, a court may find the covenant outdated and irrelevant. For example, someone who has been demoted or sidelined later in their employment may not be held to the same covenants as when they held a more prominent position.
Start a different role that does not breach the covenant
Another practical approach is to find a new role that falls outside the scope of the restrictive covenant. This could involve working in a different region, serving a different client base, or operating in a different sector. If the new position does not contravene the terms of the covenant, you may proceed without legal risk.
Wait for the covenant to expire
If the restrictive period is relatively short – for example, three to six months – it may be worthwhile to wait until the restriction has expired before pursuing your next role or opportunity. During this period, you should ensure full compliance to avoid any breach that could trigger legal action or reputational harm.
Risks of breaching restrictive covenants
Breaching a restrictive covenant can carry significant consequences. Employers may apply for an injunction to prevent further breach, claim damages for losses suffered, or pursue legal costs. In some circumstances, your new employer could also be joined in legal proceedings if they knowingly induce the breach.
It is important to understand that even if a covenant appears unenforceable, taking action without legal advice may expose you to risk. Courts consider not just the validity of the covenant but also your conduct, intentions, and willingness to comply with contractual obligations. Acting in good faith and seeking legal guidance will help protect your position.
How Stephensons can help
At Stephensons, we offer expert legal advice to individuals facing restrictive covenants in employment contracts. We understand the challenges these clauses can present and will work with you to assess the enforceability of the restrictions, advise on your legal rights, and explore practical solutions that minimise disruption to your career.
Our employment law team has extensive experience dealing with restrictive covenant disputes and is well positioned to support you at every stage – from initial contract review through to complex litigation where necessary. We approach each case with a strong understanding of commercial reality and focus on finding pragmatic outcomes wherever possible.
If you are currently subject to a restrictive covenant or planning to move roles, early legal advice can make all the difference. Stephensons can help you understand how to get around restrictive covenants employment and ensure you move forward with confidence and legal clarity.
Speak to our employment law specialists
For confidential advice on restrictive covenants and employment contracts, contact our experienced team at Stephensons today on 0161 696 6170 or fill in our enquiry form.
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