There is a popular misconception that post termination restrictive covenants are void for being in restraint of trade. These are the types of clauses that try and prevent a former employee from soliciting or dealing with former customers, suppliers and colleagues, or in some cases, competing at all.
However, each case must be considered on its own facts looking at what industry they were working in, what the former employee did, how senior they were, what confidential information they might have and most importantly, how well drafted the restrictions are.
A court will want to see that when the restrictions were entered into, they went no further than was necessary to protect the legitimate business interests of the employer. The Court will not rewrite restrictions, if they are too long or too wide they will be struck out completely.
Breach of lawful and enforceable restrictive covenants can be very expensive as this is usually litigated in the High Court and the losing party must pay the winner’s costs, which can be high. It is therefore important to get expert advice on enforceability as soon as possible.