Non-Compete & Restrictive Covenant Enforceability Checker 2025

Are Non-Compete Clauses Enforceable in England and Wales?

Non-compete clauses — more accurately described as post-termination restrictive covenants — are a common feature of employment contracts, particularly for senior employees, salespeople, and those with access to confidential information. The short answer to whether they are enforceable is: it depends. English courts apply a two-stage test before enforcing any restriction on an employee's ability to work.

The first question is whether the employer has a legitimate proprietary interest capable of being protected — not merely a desire to limit competition. The recognised legitimate interests are: confidential information and trade secrets, customer connections and goodwill, and the stability of the workforce. A restriction designed purely to stifle competition, without protecting one of these interests, is what courts call a "bare restraint of trade" — and it is void as against public policy.

The second question is whether the restriction goes no further than reasonably necessary to protect that legitimate interest. Even if the interest is legitimate, a restriction that is too wide in scope, too long in duration, or too broad geographically will be unenforceable. Courts will not "blue pencil" (rewrite) a restriction to make it enforceable unless the excess part can be removed without changing the character of the restriction — and even then, courts are increasingly reluctant to rescue poorly drafted restrictions.

The Four Main Types of Restrictive Covenant

Non-Compete (Non-Competition)

The broadest type — prevents you from working for a competitor or setting up a competing business within a defined area and time period. These are the hardest to enforce because they go furthest in restricting your freedom to earn a living. Courts will scrutinise duration and geographic scope closely. For a senior executive in a specialist industry, 6–12 months may be acceptable. For a junior employee, even 3 months may be too long. Global or pan-European non-competes are almost never enforced in practice.

Non-Solicitation of Customers

Prevents you from actively approaching former clients or customers for a period after leaving. These are generally more likely to be enforced than non-competes because they are narrower — they stop you approaching specific people rather than preventing you from working altogether. Key factors are whether you had personal relationships with the customers, and whether their details are genuinely confidential.

Non-Solicitation of Staff

Prevents you from poaching former colleagues. Courts look at whether you had a role in managing or supervising those staff, and whether the restriction covers all staff or only key individuals. A blanket prohibition on recruiting anyone from your former employer is likely too wide.

Non-Dealing

Goes further than non-solicitation — prevents you from doing business with former customers at all, even if they approach you. These are the hardest of the solicitation-type restrictions to enforce because they prevent passive business as well as active solicitation.

The Role of Consideration — Was There Something in Return?

A covenant included in the original contract of employment is supported by the promise of employment itself — the job is the consideration. However, restrictions introduced or varied during employment require fresh consideration — something new of value given by the employer. Simply presenting an existing employee with a new contract containing more restrictive terms, without any benefit (such as a pay rise, promotion, or a specific payment), creates a real risk of unenforceability for want of consideration.

This is a commonly exploited weakness. If your employer asked you to sign a new contract with tighter restrictive covenants at an annual review, without offering you anything new, the new restrictions may not be enforceable even if the rest of your terms were updated. Legal advice on this specific point is valuable.

What Happens If You Breach a Restrictive Covenant?

If your employer believes you are breaching a restrictive covenant, they have two main routes. First, they can seek an injunction from the High Court — an emergency court order requiring you to stop the activity immediately. Injunctions can be obtained very quickly (within days in serious cases), and breaching one is contempt of court. Second, they can sue you for damages — compensation for losses caused by your breach. In practice, many employers threaten enforcement but settle for undertakings (promises) rather than expensive litigation.

Even if a restriction is arguably unenforceable, litigation is expensive and stressful. Many employees and new employers pay to settle even weak claims rather than fight. This is why getting legal advice before you breach a restriction — rather than after — is so important.

Garden Leave and Restrictive Covenants

Garden leave is often used as an alternative or supplement to restrictive covenants. During garden leave, you remain employed (and paid) but are required to stay away from the workplace and not work for anyone else. The period of garden leave can be set off against the period of any post-termination restriction — so if your restriction runs for 12 months and you serve 3 months of garden leave, the effective post-termination restriction period is reduced to 9 months in practice (though this depends on how the contract is drafted).

Government Consultation on Non-Competes

In 2023, the government consulted on limiting non-compete clauses to a maximum of 3 months for most employees, arguing that overly long restrictions stifle labour market mobility and economic growth. While no legislation has yet been enacted following that consultation, it reflects the direction of travel and may influence how courts approach particularly long restrictions going forward.