Jeremy Clarkson, who was publicly removed from his role as controversial Top Gear presenter by the BBC in March, is making the papers again this week as a result of his high profile sacking.
Over the past few days, Clarkson’s name has been splashed across the headlines as it’s come to light that he may not be able to host a car show on a UK channel for a period of two years as a result of a term in his contract.
But can employers legally prevent their ex-employees from working for a competitor? And if so, how do they go about enforcing it?
Restrictive Covenants
Clauses such as the one mentioned above are actually common in modern employment contracts, and are referred to as Restrictive Covenants.
Restrictive Covenants are considered vital in business, and are implemented in order to protect a business’ interests. However, it’s important to note that they strictly cannot go any further than is necessary to protect said interests.
In England and Wales, courts are very strict when an employer is seeking to enforce a restrictive covenant, particularly as these clauses can restrict an individual’s chance of finding alternative employment and can be seen as a restraint of trade.
Implementing a Restrictive Covenant
A large percentage of employers implement a ‘one size fits all’ restrictive covenant, which actually can risk the clause becoming unenforceable. Restrictive covenants that accurately reflect an employee’s role within a company, as well as the workings of the company itself, are far more likely to hold up in court. For example, a restriction that refers to a set location and a specific length of time is far more likely to be enforceable than a blanket restriction.
When implementing restrictive covenants, employers also need to keep in mind that any period that an employee is placed on garden leave will be deducted from the length of time that a restrictive covenant covers. Also, if an employer wrongfully dismisses an employee (by failing to provide them with correct notice, for example) the covenant will be rendered invalid.
Breaching a Restrictive Covenant
Should an employer believe that an ex-employee has breached their restrictive covenant, they can apply to the court for an injunction. Applications such as these are usually made for an interlocutory injunction pending a full trial, meaning that the court can attempt to stop the employee from continuing with the activity in breach of the contract immediately, until such a time that full evidence is heard.
Howells Solicitors
If you would like to discuss restrictive covenants or any area of employment law in more detail, please get in touch and my team and I will be able to assist you.
