Enforcing Restrictive Covenants Against Scottish Employees

Restrictive covenants seek to limit the ability of employees, typically senior ones, to work or carry out certain actions for a specific period after their employment is terminated. They are notoriously difficult to enforce because a court's starting point is that they are an unenforceable restraint of trade, unless they are shown to be necessary to protect the employer's business.

This applies in Scotland as in England and the rest of the UK: restrictive covenants created under English law should be enforceable in Scotland if the usual tests on enforceability are satisfied.

The onus is on an employer to demonstrate that they have a legitimate business interest to protect and that the protection afforded by the covenant is no more than reasonable; if covenants go beyond this, then they will be, and often are, struck down by the court.