Determining whether restrictions are enforceable

This Overview outlines the Practice Notes available in our subtopic: 'Determining whether restrictions are enforceable'.

The combined effect of the implied duty of fidelity, any fiduciary duties owed by the employee and express restrictions on competition (such as garden leave clauses) and on the use of confidential information during employment contained in the contract of employment can protect the employer against competition while the employee is employed. Post-termination restrictions (also known as restrictive covenants) can provide effective protection to an employer against competition by a former employee.

However, the protection that such provisions afford will depend on the extent to which the relevant restrictions are judged by a court to be enforceable.

Usually, the enforceability of the relevant restrictions will be judged by a court at an interim hearing of an application by the employer for an interim injunction to enforce the restriction concerned.

The Practice Notes in this subtopic examine the enforceability of post-termination restrictions against employees. The principles applicable to the enforceability of post-termination restrictions against other individuals in commercial agreements (eg partners, consultants, shareholders) are similar but not the same and outside

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Right to work guidance updated on Digital Verification Service checks

The Home Office has issued an updated version of its ‘Employer’s guide to right to work checks’ document, with the changes primarily related to simplifying the information on digital checks for employers of British and Irish citizens who have a valid passport (or Irish passport card). The new version has removed various technical details which were previously intended for providers of these digital verification services, and revised the relevant terminology, so that ‘Digital Verification Service (DVS)’ now includes both the terms Identity Service Providers (IDSPs) and Identity Document Validation Technology (IDVT). This is stated to align the guidance with the terminology used in the UK digital identity and attributes framework and the Data (Use and Access) Act 2025. Guidance and requirements specifically for DVS are now set out in a separate, supplementary code for digital right to work checks. The relevant guidance for employers has been revised. Although it is not currently mandatory for employers to use a DVS certified against the ‘trust framework’ and the supplementary code, this position will change ‘in the near future’, and it will become mandatory to use a DVS listed on the register of certified DVS (maintained by the Office for Digital Identities and Attributes (OfDIA)). In other changes, the new version reiterates that an original expired BRP is not proof of a right to work, and instead an online check must be taken. It also confirms that short-term entry clearance vignettes are being phased out, and that increasingly persons recently issued entry clearance will only have their eVisa to rely on for these purposes, so will need to create a UKVI account as soon as possible and can do this from overseas. In relation to asylum seekers with a pending claim, the guidance now states that they can also volunteer whilst their claim is considered without being granted permission to work, but they can only carry out 'paid' work if they have been granted permission to work under the Immigration Rules, Part 11, paras 360 or 360C. Previously the reference in our quotation marks to ‘paid’ work stated ‘voluntary’ work

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