I am regularly asked the question – "Are restraints in an employment context enforceable"?
A restraint of trade clause is presumed void as it is against public policy to prevent a person from working.
However, all is not lost! Restraints are enforced by the court when the employer has a genuine interest to protect, and when the restraint is no wider than needed to protect that interest.
For a restraint clause to be enforceable, it must be carefully drafted taking into consideration all the facts about both the employer and the employee.
Accordingly, it is important that a restraint clause not be a standard "off the shelf" clause as it may fail the test of reasonableness imposed by the courts.
When entering an employment contract with key employees , legal advice should be sought to protect the business.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
