Non-compete clauses to be limited

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Non-compete clauses are often found in a document called a restrictive covenant. The purpose of all elements within the document is to restrict an employee’s economic activity for a defined period when they leave your organisation.

These documents are considered a valid measure for businesses who are seeking to protect their interests: their client lists; their existing talent; their sales strategies; their trade secrets etc to name a few.

They are seen as more of a commercial agreement and enforcement of a breach by an ex-employee will be done through the civil courts. There are no specific laws which govern the use of restrictive covenants other than the concept of ‘reasonableness’. The application of the document cannot be deemed a “restraint of trade”; an unreasonable limitation on the employee attempting to earn a living once they have left their previous job.

There are four principal types of covenant:

What’s happening with non-compete clauses?

The Government has announced it will bring in new legislation limiting the application of a non-compete clause to a maximum time period of three months. No other element of a restrictive covenant mentioned above will be affected.

The Government also considered banning non-compete clauses but decided to stop short of this measure.

Why has the Government done this?

This is an attempt to build on measures already taken to make Britain the "most dynamic place to work in the world", based on a high-skill, high-wage economy. This is to be achieved by increasing the amount of flexibility in the labour market, boosting opportunities for businesses to start-up, grow and create jobs.

To deliver this, the Government wants to make it easier for individuals to start new businesses, find new work and apply their skills to drive economic growth.

Non-compete clauses are seen as a barrier that prevent individuals from working where they want to or applying their entrepreneurial spirit to a competing business. The Government found that non-compete clauses were used in both highly paid and low paid roles and lasted anywhere between one month and 24 months.

What should employers do?

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