Non-compete clauses (also called restrictive covenants) are a common feature of UK employment contracts, particularly for senior employees, salespeople, and those with access to confidential information. However, they are not automatically enforceable — UK courts treat them with suspicion and will only uphold them if they meet strict criteria.
The Legal Test
For a non-compete clause to be enforceable, the employer must demonstrate:
- Legitimate business interest — the clause must protect something specific, such as trade secrets, confidential information, client relationships, or a stable workforce
- Reasonableness — the restriction must go no further than necessary to protect that interest
- Proportionality — the duration, geographic scope, and activity restrictions must be proportionate
What Courts Consider
- Duration: 3-6 months is generally considered reasonable for most roles. 12 months may be upheld for very senior positions. Anything beyond 12 months is rarely enforceable.
- Geographic scope: Must relate to the actual area where the business operates or where the employee had influence. A nationwide restriction for a regional salesperson is unlikely to be upheld.
- Scope of activities: A blanket ban on working in the same industry is too broad. The restriction should be limited to competing activities that could genuinely damage the former employer's interests.
- Seniority: More extensive restrictions are more likely to be upheld for senior employees with greater access to confidential information and client relationships.
Types of Restrictive Covenants
- Non-compete — prevents working for a competing business
- Non-solicitation — prevents approaching the employer's clients or customers
- Non-dealing — prevents doing business with the employer's clients even if they approach the former employee
- Non-poaching — prevents recruiting the employer's staff
Non-solicitation and non-dealing clauses are generally easier to enforce than outright non-compete clauses because they are narrower in scope.
If a Clause Is Too Wide
UK courts cannot rewrite an unreasonable clause to make it enforceable — if the clause fails the test, it falls entirely. This makes careful drafting essential. A "blue pencil" test allows courts to sever unenforceable parts only if the remaining clause still makes grammatical sense without changing its meaning.
Restrictive covenants need expert drafting to be enforceable. Our employment law team can draft, review, and advise on covenants that will actually stand up in court. Get in touch.