In response to the Government’s widely publicised consultation on Options for reform of non-compete clauses in employment contracts, the Employment Lawyers Association assembled a Working Group of specialists to produce a detailed response. The Group included highly-experienced employee competition solicitors, solicitors with wider and international experience, and academics. James Bickford Smith was one of three barrister members. Between them the Group have experience of hundreds (if not thousands) of employee competition disputes.
This is the third occasion the government has consulted in the same area, signalling appetite for change. There has been significant international debate over non-compete covenants, including in academic literature. Within the UK, there is anecdotal evidence of a growth in the inclusion of non-compete covenants in the contracts of some low paid workers in the fast-food, healthcare and childcare sectors. Such covenants are as a general rule obviously unenforceable but can operate to dissuade workers from changing jobs. There also remain concerns at litigation/costs dynamics in some cases.
The Working Party’s full Response is accessible in pdf format here. The response’s measured, closely reasoned, conclusions reflect a mature assessment of the current position, the proposed reforms, and the Party’s experience acting for both employers and employees in restrictive covenant disputes. By way of short summary, ELAs position remains that:
