In a recent case where the reasonableness of a restrictive covenant was considered the High Court said “If the restraint is greater than is reasonably necessary to protect the trade connection, it will not be enforced”.
If the employer wishes to enforce a restrictive covenant he may seek an interim injunction or alternatively he may seek damages from the employee for breach.
The court would consider whether
• The covenant is enforceable
• The employee was in breach
• The breach caused loss to the employer
If the employer succeeds in the above then the loss would be assessed by the court.
The employer may also decide to sue the employee’s new employer if it can be said that he induced the employee to breach his contract.
It is both important to ensure that any restrictive covenants to be included in contracts of employment are considered carefully for each and every employee. It is not acceptable to have a standard covenant since it is not the case that “one size fits all”
We can advise and assist you in drafting your contracts of employment to ensure that any restrictive covenant is appropriate for each particular employee.
We can also advise and assist you in enforcing the covenants should you believe that your ex-employee is in breach.