There is a clear distinction between the enforceability of
restrictive covenants during the life of the employment
relationship and after its termination.
Restrictive covenants in the course of the employment
relationship are tied to the duty of fidelity; this duty is implied
into the contract of employment and is usually expressly provided
for. These restrictions are generally enforceable given the
legitimate interest that employers have in protecting their
businesses. However, the implied duty of fidelity comes to an end
on the termination of employment and it is in this context that the
enforceability of post-termination restrictive covenants is
considered.
Recent decisions from the High Court of England and Wales
provide useful insight into the factors considered by the Courts in
deciding whether or not to grant an injunction enforcing
post-termination non-solicitation and non-compete clauses.
