Post-termination restrictions: drafting questions

Post-termination restrictions should be drafted around a legitimate business interest and the particular role. A standard restriction imposed on every employee can be wider than necessary and may fail when the employer needs to rely on it. ^[1]

Identify the interest and exposure

Describe the confidential information, customer relationships or workforce stability at risk. Establish which clients or information the employee will actually encounter and how quickly that knowledge loses commercial relevance.

Consider whether confidentiality, non-solicitation or non-dealing terms address the concern before proposing a non-compete. Define restricted activities, people, duration and territory with enough precision to match the risk.

Review changes and enforcement practicality

Check restrictions when responsibilities materially change, and obtain advice on agreement and consideration where new terms are introduced. A promotion does not automatically rewrite an old covenant. Coordinate garden leave, notice and any offset wording.

Explain the restriction clearly before signature and retain the final accepted version. An employee's covenant review shows common interpretation issues; settlement negotiations may provide a later opportunity to agree a tailored release. Avoid promising that any drafted clause is guaranteed enforceable; that depends on the law and circumstances when assessed.

Identify the business interest before choosing a clause Describe what the employer needs to protect and how the particular employee could affect it after departure. Separate confidential information, customer connections and workforce stability. A wish to prevent ordinary competition is not a sufficiently precise drafting instruction. Explain which information the role accesses, how current it remains and which relationships the employee develops. Acas describes restrictive covenants as protections for business interests, with enforceability dependent on the terms and circumstances. [1] The drafter needs the actual exposure rather than a request for the strongest clause available.

Compare different roles instead of applying one restriction to the entire workforce. A junior employee with limited client contact may not present the same concern as a senior account lead. Record the reason for any difference in scope. If access will increase after training or promotion, plan an appropriate review rather than imposing a broad restriction now on the assumption that it may become useful later. The agreement should be assessed in its relevant circumstances, and a future change in responsibilities does not automatically repair an unsuitable original clause.

Choose the least extensive terms that address the concern Consider whether confidentiality, non-solicitation or non-dealing provisions address the identified risk before proposing a non-compete. Define the activities and relationships precisely. A customer definition may need attention to actual dealings, responsibility and the relevant period, rather than covering every person who ever purchased from any group company. Ask the adviser to explain how each definition serves the interest identified. Long lists of restrictions can obscure ambiguity and inconsistency; including more clauses does not itself make the employer's position more reliable.

Assess duration and territory against the commercial facts. Explain how long confidential knowledge remains useful or how customer relationships are renewed, without inventing a period solely because a template uses it. Where business is digital or geographically dispersed, a conventional radius may not describe the real concern. Keep the advice and drafting assumptions with the agreed version. No period should be described as automatically enforceable, and a government proposal about restrictions should not be treated as an operative statutory limit without checking its actual commencement.

Coordinate restrictions with the wider contract Review notice, garden leave, confidentiality and intellectual property terms for consistency. If the employer intends a period of garden leave to reduce a later restriction, draft the relationship clearly rather than leaving payroll or HR to calculate an assumed offset. Consider any outside work or existing business disclosed by the employee and document an appropriate exception. A restrictive clause should not contradict an express permission elsewhere in the agreement. The entire departure framework needs to be understandable to the manager who may later have to administer it.

When introducing restrictions during employment, obtain advice on agreement, consideration and the appropriate process. A promotion letter should identify any new terms clearly and retain evidence of acceptance. Do not insert a revised covenant into an intranet contract after the employee has signed an earlier version. Keep the date, role and documents associated with the change. If the employee declines, assess the available options lawfully rather than assuming the employer can impose the restriction simply because protecting the business is commercially desirable.

Plan for practical handling when an employee leaves Identify who reviews the proposed next role, communicates restrictions and considers a waiver. Ensure the person giving permission has authority and understands the clause's scope. A tailored release may resolve a limited overlap more effectively than an unexplained blanket refusal. Keep any agreed exception in writing with its activities, duration and conditions. At the same time, manage return of property and confidential information through an authorised process; a covenant should not be treated as a substitute for basic information security and an orderly handover.

If enforcement is contemplated, obtain prompt advice on the wording, evidence, urgency and remedy sought. Preserve relevant communications and access records without altering them. Do not assume that sending a strongly worded demand establishes breach or that litigation will necessarily recover its cost. Record what the business is trying to prevent and why a particular response is proportionate. The drafting file should help a later adviser understand the protected interest, role, agreement and current concern, making it possible to assess the actual clause instead of reconstructing why it was included years earlier.