Drafting for Enforceability
While it is relatively straightforward to include a restrictive covenant in a contract, the real challenge is ensuring it is enforceable. In the UK, the starting point is that such clauses are generally unenforceable unless the employer can demonstrate they are necessary to:
- Protect confidential business information
- Preserve key client relationships, where a breach would cause business harm
- Retain trained or skilled staff critical to operations
Additionally, the clause should be reasonable in scope, usually including:
- Duration: The period during which restrictions apply must be proportionate.
- Geographical area: The area covered must reflect the employee’s role and actual business exposure.
It is therefore not advisable to use a standard clause for all employees, as not every employee will have access to confidential information, key clients, or sensitive knowledge in the same way. Tailoring the covenant ensures that it is more likely to be enforceable and defensible in court.
If you need to implement a restrictive covenant call 0330 107 0106 or request a free call back to speak with our employment lawyers.