Is a non-compete clause enforceable?

Restrictive covenants are a restraint of trade, and the starting point in law is that a restraint is void unless the employer can justify it. Justification has two limbs: a legitimate business interest — confidential information, trade secrets, client connections, workforce stability — and a restriction that is no wider than reasonably necessary to protect it.

The clauses you are likely to have

• Non-compete — the hardest to enforce, because it stops you working at all in a defined field.
• Non-solicitation and non-dealing — narrower, aimed at clients you actually dealt with, and far more likely to be upheld.
• Non-poaching — preventing you recruiting former colleagues.
• Confidentiality — which continues after employment ends, but cannot stop a protected whistleblowing disclosure.

What makes a covenant fall over

Duration, scope and geography are judged together against your actual role. Non-competes of six to twelve months are commonly upheld for senior or specialist employees with genuine access to trade secrets and key client relationships; twelve months is regularly upheld at the most senior level; eighteen months or more attracts serious scrutiny and is often struck down. Many employers now use three to six months precisely because shorter covenants are easier to defend.

Two other weaknesses are worth checking. A covenant added mid-employment must be supported by fresh consideration — something of value given in exchange, since a bare promise of continued employment is usually not enough. And if the employer committed a serious breach of contract of its own, such as dismissing you without proper notice, you may have been released from post-termination obligations altogether. That argument is fact-sensitive and needs advice quickly.

If you are moving jobs

Employers enforce through the courts, seeking an injunction to stop you taking or continuing the new role, often at short notice. An indemnity from your new employer is a financial safety net covering costs and damages — it does not stop an injunction being granted, so it is no substitute for your own advice. Have the clause reviewed before you resign, and consider negotiating a release or a narrowed covenant as part of your exit terms, which is far cheaper than litigating it later.