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