In order for a restrictive covenant to be enforceable, the burden is on the employer to show that:

  1. It has a legitimate proprietary interest that is appropriate to protect; and
  2. the protection sought is no more than is reasonable.

Legitimate proprietary interests are things such as trade connections, suppliers, customers, trade secrets or other confidential information. If the employer can show that there is a legitimate interest to protect, then it should impose the restriction no wider than what is necessary to protect that particular interest.  

If an employee has breached their restrictions then, provided they are enforceable, there are remedies available to the employer against the employee. These remedies including seeking an injunction to prevent the employee from carrying out their infringing activities and/or a claim for damages if the employer can show it has suffered a loss due to the employee’s breaches. We are experienced in bringing High Court injunctions against employees, to enforce the terms of their restrictive covenants. 

If you require assistance with drafting restrictive covenants or wish for assistance relating to an employee who has infringed their restrictions, then please do not hesitate to contact our Employment Team.

Next step