MelVan

Yep - restraint clauses tied to (mis)use of confidential information can be and are enforced.

"Everyday job hopping" is a different matter, and you're right that for junior roles where there's no risk of confidential information being misused the prospects of a time consuming and costly court case are remote.

But seniority is important, as are things like "handcuff" clauses - if there's a payment tied to the restraint, that will aid in its enforceability and if the payment is big enough, also in the attitude of the employer in whether they will seek to enforce it.

mahdawg

I've signed a couple of these (one of which is for the job I'm currently in) but it wouldn't stop me moving to another company in the same industry. I've also never seen one enforced and doubt I ever will, so if you can't get it changed, don't worry about it.

As others have mentioned, they probably won't care unless you start trying to steal clients/ private info.

Almost Canadian

How often do you go to Court?

FWIW I have experience with these. While it is unlikely the employer will enforce them the new employer will be best advised not to ignore them. Faced with a choice between two prospective employees, one with such a cloud hanging over them and one without, which do you think the new employer is going to choose?

The employee will be faced with arguments that they received an inducement to accept such a term and the employer can go to Court to obtain an injunction to prevent the employee commencing work.

Of course, lots will depend upon the geographic limit and the period of time, whether gardening leave was paid, whether the employer can be bothered to enforce them, but they are not as useless as some of the posts on this thread would suggest.

dbd33

I suggest that enforcement is more likely when small firms are involved. A giant corporation has funds and a legal department but will likely take a pragmatic view. The owner of a small firm may feel personally wronged and so take vengeful action.

mahdawg

Never, nor should I ever hope to, at least for the wrong reasons

I do get that there is a possibility of course that it is brought into action.

And surely the counter would be the same, if offered a choice between two employees, one who is willing to sign the contract with no issues or one who wants it changed, who would you choose?

Almost Canadian

I agree.

Very rarely are they put in to protect loss of IP. They are put in to give the employer options in the future. Rarely is there justification for any employee signing them.

As with most things, the way they are handled in North America by the Courts is frightening when compared to how they are handled by more civilised societies.

Almost Canadian

That is why they are heavily weighted in favour of the employer, at least in North America. I also agree that they are rarely the subject of litigation.

MelVan

Actually, protection of confidential information (which is sort of a kind of IP) is very often a key reason for their inclusion, particularly with employees who have access to key confidential information / know-how. And courts in the common law world will definitely enforce restraints in those circumstances. I've done several cases right on that point. Also, as I've explained, individual case facts such as seniority of the employer and whether there's specific consideration for the restraint are very important for enforceability.

That's not to say restraint clauses otherwise may not otherwise serve the strategic/tactical considerations of an employer such as those you've identified. And I agree that employees should look very carefully at the restraint and how it could potentially work (and get some advice on enforceability) before signing up to it.