Isle of Man: Setting Boundaries – Restrictive Covenants And Restraints Of Trade

Last Updated: 29 September 2016
Article by Leanne McKeown

Restraints of trade in the employment contract are quite often not given the attention they deserve until the time comes when the employer is under threat by a former employee and enforcement action is required to protect the business.

Question 1: What makes for a good (i.e. enforceable) restrictive covenant?

The Isle of Man High Court in Rational Services Limited t/a "Pokerstars" v Scott (24 February 2011) considered the law applying to covenants in restraint of trade which can be distilled as follows:-

  • The starting point is that the public have an interest in every person carrying out his trade freely: the restraint of trade doctrine limits freedom of contract and thus a post termination covenant will be deemed unenforceable as contrary to public policy, unless it can be justified as being reasonable to the interest of the parties and the public;
  • Analysing this further, the restraint of trade will only be enforceable if:

    1. it protects a legitimate interest (being an advantage or asset inherent in the business); and
    2. it is no greater than reasonably necessary for the protection of the employer in his business.

In an ideal world restraints of trade or "restrictive covenants" as they are otherwise known, will be drafted with particularity as regards the threat posed to the business or the legitimate interest requiring protection. In other words, the restrictions will be properly defined and in a form appropriate to the individual at the time of signing.

Unfortunately, as the case law demonstrates, the appropriate due regard is often not given to the drafting of restrictive covenants at the relevant time (being the commencement of employment or a new role) or indeed thereafter. The recent English High Court decision of Bartholomews Agri Food Limited v Thornton [2016] EWHC 648 (QB) offers a cautionary tale from which lessons can be learned.

In this case, Mr Thornton was restricted, for 6 months post termination, from being engaged in work supplying goods or services of a similar nature which competed with the employer to the employer's customers and from working for a trade competitor within the company's trading area (as defined). Provided that Mr Thornton did not breach this non-competition restrictive covenant, the contract provided that the employer would continue to pay him for the duration of the 6 months post termination, even if he was being paid by a new employer.

The non-compete clause was ultimately deemed invalid and unenforceable by the English High Court. The reasons cited included:-

  • Mr Thornton was only a trainee when the clause was entered into and its terms were therefore "manifestly inappropriate" for a junior employee.
  • It was far wider than reasonably necessary to protect the employer's business interests.
  • The offer to continue to pay Mr Thornton for the duration of the post termination restriction was contrary to public policy.

Lessons Learned

Question 2: What can an employer do to better protect itself by having valid restrictive covenants? **

  1. Do not overstate the period of restriction. The duration of the covenant will be key to determining the reasonableness of the same. If the period is longer than that which is reasonably necessary to protect the employers' business interests then it will fail. In determining the appropriate duration employers should consider:-

    • Industry practice.
    • Life circle of the business transaction.
    • How much time would the employer properly require to replace the departing employee?
  2. The employer should document its considerations. Employers can increase the likelihood of restrictive covenants being enforceable where documents exist identifying the legitimate interest(s) the employer seeks to protect and the required scope of the restrictive covenant. This will assist should the employer ever be required to justify the drafting of the covenant. Better still, have your lawyer define the legitimate interest within the contract of employment!
  3. Confine non-solicitation and non-poaching clauses to those customers/clients and employees with whom the employee in question had dealings during his/her employment and be precise as to the definition of dealings to which you refer. For example, define key employees whom you would wish to restrict the employee poaching should he/she ever leave the business.
  4. Keep any restrictions within the scope of activities for which the employee is responsible. Don't overreach. Whilst it is tempting to err on the side of caution and draft any restrictive covenant widely, so as to include the employee acting in any capacity in competition with the business, such drafting will likely be found to be wanting and thus, invalid.
  5. Review regularly. Employers should consider the drafting of restrictive covenants for key employees regularly to ensure that they remain "fit for purpose". An ideal time would be at any annual review when the employer could properly tie any change in restrictive covenants to any salary increase awarded.

** Not an exhaustive list.

Whilst most employers hope that they never have to issue injunctive proceedings to prevent a former employee from acting in breach of restrictive covenants, the reality is that it can and does happen. In these circumstances the employer would wish to ensure that any restriction necessary to protect the interest of the business is in fact capable of being enforced and is thus "worth the paper it is written on".

Question 3: When did you last review your staff contracts of employment?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Leanne McKeown
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions