Post Termination Employee Restrictions

Maintaining business security during staff changes.

When an employee leaves, they may take knowledge with them that could harm or impact your business. From confidential and technical information to important client details, this information needs protecting.

Understanding the right level of protection for your business is crucial. Too little might leave you vulnerable, while too much may prove difficult to enforce. Our employment specialists help you strike the right balance.

We advise and assist with drafting post-employment restrictions that work to:

• Reflect your specific business needs and circumstances
• Protect client relationships and confidential information
• Create reasonable limitations on competitive activities
• Discourage employees from joining direct competitors
• Help prevent solicitation of clients and colleagues
• Enable claims against new employers who encourage breaches

We help draft these protections with precision, ensuring they work effectively while remaining legally enforceable. This balanced approach helps safeguard your business interests without creating unnecessary restrictions that might not stand up in court.

Are post termination employee restrictions enforceable?

The short answer is a qualified ‘yes’.

They are certainly capable of being enforced but this is subject to the organisation seeking to rely on them satisfying a court that:

1. The restrictions are intended to protect or safeguard one or more legitimate interests e.g. (i) Confidential information or (ii) “customer connection” – the rapport or relationship which the employee may have created with the client in the course of their employment or (iii) maintaining a stable workforce; and that
2. The protection sought is no more than is reasonable having regard to the interests of the parties and the public interest. This will involve limiting the restricted activities themselves, the period for which the restriction will apply and (if appropriate) the geographical extent of the restriction

Restrictive covenants in employment contracts are generally viewed more strictly than those in commercial contracts (such as those between a seller and a buyer) because of the inequality of bargaining positions between employer and employee.

It is therefore important that you take expert employment advice to ensure that the particular restrictions imposed are properly calibrated to ensure that they will meet the satisfy the tests referred to above.

If you are faced with an employee or ex-employee poaching your clients or misusing your confidential information to divert your business, you need to act promptly. We will work with you to stop or limit damage to your business, including, where appropriate, instigating court proceedings.

We can also advise if you (or an employee of your business) are threatened with legal proceedings by a previous employer as to the enforceability or otherwise of the relevant provisions having regard to all the individual circumstances of your case.

Our employment lawyers partner with you to understand your business’s unique needs, creating practical protections that work in the real world. Whether you’re reviewing existing contracts or creating new ones, we ensure your business interests remain secure as your team changes.