Can I Enforce a Restraint of Trade Against an Ex-Employee?

Building, running and protecting your business takes hard work. To protect that work, you should include and enforce a ‘restraint of trade’ clause in your employment agreements. Restraint of trade clauses protect your business from exploitation by current or ex-employees. To help you understand how you can better protect your business, this article will take you through preparing and enforcing restraint of trade clauses.

Restraint of Trade Clauses

Two common types of restraint clauses are:

• non-competition clauses, which prevent ex-employees from working with direct competitors for a specific period or distance post-employment; and
• non-solicitation clauses, which prevent ex-employees from soliciting your clients and current staff.

You should ensure that employees are aware of these restrictions before they start work with you. For example, you can include restraint of trade clauses in your employee’s employment agreement. 

Drafting a Restraint of Trade Clause

It is important to draft employment agreements with an appropriate and enforceable restraint of trade clause. As such, restraint of trade clauses must be reasonable for your industry to be effectively enforced. For example, it may be difficult to enforce a restraint of trade in a niche industry because you would only serve to restrict your former employees from working in their chosen profession. 

A well-drafted employment agreement will typically include a ‘cascading’ restraint clause. A cascading time and distance clause may look like this:

Importantly, the court will only select the most reasonable option from the cascading clause and cross out the others. Your restraint clause is therefore more likely to be enforced if it is cascading.

When an Employee Leaves

When an employee leaves your business, it is helpful to draft an ‘exit deed’. This is an optional agreement guiding the post-employment relationship. In particular, a deed reminds ex-employees of their obligations and the restraint of trade clauses in their contract.

The exit deed also shows your ex-employee that the restraint clauses are essential and you are therefore ready and able to enforce them if necessary. This reminder is generally sufficient to ensure your employee does not breach their restraint clauses, ultimately reducing and avoiding the need for legal disputes.

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How to Enforce a Restraint of Trade Clause

Suppose you discover an ex-employee is in breach of their restraint of trade clause. In this case, you can send them a letter reminding them of their obligations. The letter should:

• outline what conduct (if known) is in breach of the clauses, e.g. working for a competitor, or actively soliciting clients or current staff; and
• request the ex-employee to sign an agreement to stop behaviour that is in breach of the initial clauses and maintain confidentiality, within a specified time frame.

If this letter is not enough to ensure your employee discontinues the relevant actions, you may need to take further action.

Subsequent Breaches

If your ex-employee continues breaching the restraint clause despite your request, one or more follow-up letters may be necessary. A follow-up letter might include much of the same information as the first letter, including your request to sign the agreement. Also, it is worth highlighting that an ongoing breach may result in legal action.

Injunctions

If the letters do not work, you may seek an injunction. That is, is an application to the court to stop your ex-employee from performing the action/s causing the breach. However, you should consider whether pursuing an injunction is a commercially wise decision because it is costly without a guarantee of success. Before pursuing an injunction, you should evaluate:

• the cost of court proceedings;
• the actual or projected cost of the breach;
• your likelihood of success;
• the extent of the breach; and
• the breach’s damage to the business.

Additionally, you must prove to the court that your business will face irreparable damage unless they enforce an injunction. You can do this by showing the court the real loss and damage your business has suffered as a result of the breach.

Prospects of Success

It is important to consider that your restraint of trade clause must be necessary to protect your business’ legitimate interests. Otherwise, the court will not uphold it. Legitimate interests will usually relate to confidential information and client connections.

When determining whether a restraint of trade clause is reasonable,  courts will consider the following:

• nature of the employment, such as the employee’s connection to customers;
• the negotiation process, including the bargaining position of the employee;
• duration and geographical limitations of the restraint; and
• whether the employee was given anything in exchange for agreeing to the clause.

To ensure a court will find your restraint of trade clauses reasonable, it is critical that you give your employee an opportunity to negotiate the terms of the agreement. 

Key Takeaways

In conclusion, restraint of trade clauses are complex and can be costly to enforce. Therefore, it is good practice to have well-drafted clauses within your employment agreements. If an ex-employee breaches their restraint clause, you can:

• send them letters outlining their obligations;
• ask them to sign an agreement to cease their breach; and
• resolve the matter by going to court and seeking an injunction. 

If you need assistance drafting or enforcing a restraint of trade clause, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

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