A staple in every employment contract, the non-compete clause serves to act as a deterrent for any employee looking to jump ship and set up a similar business in direct competition with their former employer.
Despite being somewhat difficult to enforce, it’s their mere presence in a contract of employment that makes them as effective as they are, particularly when coupled with other clauses, such as confidentiality and protection of intellectual property.
However, there are two schools of thought emerging on the non-compete clause – one that thinks they’re an essential way of protecting a business, by deterring employees from taking ideas, clients and staff to set up shop round the corner within a certain period of time; and then another, which believes that the contractual clause is actually stifling entrepreneurship, particularly in the technology sector, inhibiting economic growth and innovation.
According to reports, the government falls into the latter and will launch a public consultation within days to determine what changes need to be made to non-compete clauses, and to make it harder for employers to block staff from leaving to set up rival companies, in an effort to nurture more start-up businesses.
Apparently, the government is concerned that current use of the clauses is thwarting workers from leaving jobs and setting up their own businesses. As such, ministers are looking at whether reform in this area could enable free movement of future talent – as seen in California and, more specifically, Silicon Valley.
For many business owners, the thought of diluting such a clause, regardless of how difficult it is to enforce, is a worrying one – particularly smaller businesses that don’t have the means to challenge employees who go on to set up rival companies. Importantly, ministers are not expected to ban non-compete clauses altogether, but instead focus on whether they are well targeted and reasonable.
Regardless of the outcome, the fact still remains that the detail within an employment contract is crucial – not only in protecting a business, but also employee rights. We see time and again the value in getting contract wording right. Nothing can be put down to interpretation; nothing can be stretched to fit a certain situation; you have to have an employment contract that is properly drafted to enable an employer to show that the restriction goes no further than is necessary to protect its legitimate business interests. This point was illustrated in the recent case of Gemini Europe Ltd v Sawyer where the High Court agreed to uphold an interim injunction, enforcing a nine-month non-compete clause in a former employee’s contract of employment. This centred on the managing director of Gemini, a company that operates in the emerging and highly lucrative cryptocurrencies sector, leaving the business and joining a competitor three days after his employment came to an end.
Despite a complex contractual arrangement, the court found in favour of the business and was satisfied that the contract was valid, enforceable and that Gemini was entitled to protect confidential information which would have given the competitor an unfair advantage.
Whether a government-inspired public consultation will lead to a reform of non-competing clauses is yet to be seen, but what it does emphasise is the importance of regularly reviewing employee contracts to ensure that not only their restrictive covenant clauses are appropriate and reasonable, but also the confidentiality provisions are up-to-date and relevant.
What’s more, any changes to non-compete clauses can only serve to emphasise and heighten the significance of other clauses contained within employment contracts, such as confidentiality and protection of intellectual property.
If you would like further information on ensuring your employment contracts are watertight, contact our employment team.