Covenants
5 min read
Your covenant is probably too wide to enforce
Restrictive covenants are drafted by people who will never have to defend them. Most are enforceable in part, unenforceable in the round, and abandoned quietly once someone asks the right question.
Mei-Lin Cheung
Partner · Employer advisory
In short
Reasonableness is judged at the date of signing, not the date of leaving.
Covenants must protect a real interest — not simply prevent competition.
Excessive width is the most common ground for unenforceability.
Do not test it by breaching it; injunctions move faster than claims.
The clause that protects nothing legitimate protects nothing at all.
The test is legitimate interest, then no wider than necessary
A restrictive covenant is void as a restraint of trade unless the employer can show it protects a legitimate business interest — confidential information, client connection, workforce stability — and goes no further than is reasonably necessary to protect it. Both limbs are assessed as at the date the contract was signed, not as at the date you leave.
That timing point decides a great many cases. A covenant imposed on a graduate joiner and never revisited through three promotions is tested against the graduate’s role. The employer who wants a senior covenant must issue a senior contract.
Width is usually the weakness
Non-competes covering an entire sector, non-solicitation clauses reaching clients the employee never met, and terms with no geographic or temporal limit are common and rarely survive scrutiny. Courts will sever an offending phrase in limited circumstances but will not rewrite a clause to make it reasonable.
None of which means you should simply ignore one. Injunctions are decided quickly, on limited evidence, and the costs of being wrong fall on the individual. The correct response to a covenant is advice, not confidence.
A twelve-month non-compete over a whole industry is not protection. It is a bluff with a letterhead.
What to do next
Send the clause and your role at the date you signed it. That combination, more than anything else, tells us whether it is worth taking seriously.
This note is general information about the law in England and Wales. It is not advice on your situation, and time limits are short — take advice before you act.
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