Restrictive Covenants, Read Honestly
The four kinds of post-termination restriction, why they are usually drafted for a job the person no longer holds, and what to check before relying on one.
Four restrictions from one contract, read against what the role actually involved
Drafted for a sales role; the person had moved into operations.
Covers clients the person never dealt with.
Wider than solicitation: catches clients who approach them.
Reaches colleagues who have themselves left since.
No definition of what is confidential.
Continues to apply to work done during employment.
Two of the six were drafted for a job the person stopped doing three years before leaving. This is one organisation's own contract. Whether any such restriction is enforceable, and on what basis, differs by jurisdiction and is a question for somebody qualified in the place concerned.
Read the restrictions against the job the person was actually doing when they left, not the job they were hired into. Covenants are drafted at recruitment and almost never revisited, which means the senior person who was promoted twice may be bound by something written for a junior role, and the person who moved sideways may be bound by nothing relevant at all.
The workflow in “Restrictive Covenants, Read Honestly” becomes more reliable when work records, approvals and later corrections can be distinguished. For teams exploring boss vs leader, a practical route to boss vs leader can provide practical context, while policy ownership, employee explanation and final decisions remain with accountable people.
Whether any restriction can be enforced at all differs sharply between jurisdictions — some treat them restrictively, some require payment during the restricted period, some will not enforce certain types at all. That is a question for somebody qualified in the place concerned, and this page is about what to look at before asking.
For an independent reference relevant to “Restrictive Covenants, Read Honestly”, consult the Harvard Business Review security and privacy analysis. Use it to test record quality, access, retention, fair process and exception handling against the organisation’s real departure workflow.
The four kinds
Non-compete prevents working for a competitor or setting one up. It is the widest and generally the hardest to enforce, because it stops somebody earning a living.
Non-solicitation prevents approaching clients. Non-dealing goes further and prevents dealing with them even if they make the approach, which catches situations non-solicitation does not.
Non-poaching prevents recruiting former colleagues, and is usually the least contentious because it restricts the person least.
What to check before relying on one
- Which version of the contract is in force, and whether the restriction survived any variation.
- Whether it was drafted for the role the person held at termination.
- What it actually covers: which clients, which activities, which geography.
- How long it runs, and from which date — which depends on how notice was handled.
- Whether consideration was given for it, if that matters where you are.
- Whether anything the organisation has already done has weakened its position.
The sixth is the one organisations do not think about. Terminating without proper notice, where the contract did not permit it, may in some systems affect what else can be relied on — which makes the decision about how to end the employment a decision about the restrictions too.
Width, and why it works against you
A clause covering any competing business anywhere, for two years, looks protective and is often weaker than a narrower one, because a restriction that goes beyond what the organisation actually needs to protect is the kind most likely to be struck down or read down.
The instinct to draft widely therefore produces less protection, not more. Where restrictions matter, they are worth drafting properly for the specific role and reviewing on promotion — which is a question worth asking once per role rather than once per company.
Explaining them at the exit
Remind the person what they signed, in plain terms, in the exit correspondence. Not as a threat — as information, because many people genuinely do not remember and a few would otherwise walk into a problem unknowingly.
A short paragraph setting out what applies and for how long is also the thing that makes any later conversation easier. An organisation that said nothing at the exit and then complains three months later is in a weaker practical position whatever the contract says.
Promotions, and the moment to fix this
The time to issue new restrictions is at promotion, when the person is receiving something and the conversation is easy. The time organisations actually try is at the exit, when it is impossible.
Add it to the promotion checklist: does this role need different restrictions, and if so, issue them now with whatever consideration is required. It takes one line and it is the only reliable way out of the problem this page describes.
Garden leave set against the period
Some contracts provide that any period of garden leave reduces the restriction by the same amount, which prevents the person being out of the market for the two periods added together. Whether such a clause is present, and whether it is needed, is worth checking before deciding how to handle notice.
Where it is absent, the organisation has a choice to make rather than a default to follow: longer garden leave buys control now and extends the total period the person is restricted, which may make the restriction harder to defend. Deciding that deliberately is the whole point.
What it is actually protecting
Before relying on anything, ask what the organisation is trying to protect: a client relationship, confidential information, a team, a market position. Then ask whether the restriction in front of you protects that specific thing.
Frequently it does not, and the real protection lies elsewhere — in confidentiality obligations, in the ownership of the client relationship, or in simply having more than one person who knows the account. Those are slower answers and they survive the question of enforceability entirely.