UK: Supreme Court Finds That Offending Words Can Be Severed From Non-Compete Restrictive Covenants

Last Updated: 28 August 2019
Article by David Collins, Richard Barham, Candice Chapman and Anna Janik

The Supreme Court has considered the law on severance of restrictive covenants, and further developed the test to allow unreasonably wide words to be severed where this would not generate any major change in the overall effect of the covenants.


A restrictive covenant will be void for being in restraint of trade unless the business has a legitimate proprietary interest to protect and the covenant is reasonable (having regard to public interest and the parties' interests). It may also be possible to "sever" unlawful words or provisions from a restrictive covenant that would otherwise be too wide, in order that the remaining part of the covenant would still be enforceable. Various cases have previously considered the circumstances in which severance could be applied in this context, and it was the Supreme Court's findings on this point that are of particular interest.


Ms Tillman was hired by Egon Zehnder (EZ) under an employment contract which included a six-month post-termination non-competition restriction in which Ms Tillman covenanted that she would not:

"directly or indirectly engage or be concerned or interested in any business carried on in competition with any of the businesses of the Company or any Group Company which were carried on at the Termination Date or during the period of 12 months prior to that date and with which you were materially concerned during such period."

Ms Tillman was quickly promoted but was never required to sign a new employment contract. She resigned from EZ in January 2017 and subsequently notified EZ that she wished to start working for a competitor in New York on 1 May 2017. EZ issued proceedings and sought to enforce Tillman's non-competition restrictive covenant.  One of Ms Tillman's legal arguments was that the restrictive covenant was void as it was wider than reasonably required (and therefore a restraint of trade).  In particular, being "interested in" a competing business was too wide as it could prevent her from having even a minor shareholding in the competing business for investment purposes.

High Court and Court of Appeal decisions

The High Court upheld the non-competition covenant and granted EZ an injunction restraining the breach: on the facts, the protection sought by EZ was no more than was reasonable.  Moreover, "interested in any business" should be construed so as not to capture a minor shareholding, and therefore the clause was not void for being wider than reasonably necessary.

The Court of Appeal overturned the High Court's decision, finding that the restriction was too wide and therefore void: it was impossible to say that a shareholder in a company was not "interested in" that company, so any restraint including that phrase would be too wide to be enforceable. Severance of the words "or interested" from the covenant (leaving a valid restriction) was not possible as (amongst other reasons) it was a single covenant to be read as a whole.

Supreme Court decision

The Supreme Court allowed EZ's appeal.  In particular, it held that:

  • a contractual prohibition on Ms Tillman's ability to hold shares after termination of her employment with EZ fell (along with all the other restrictions in the sub-clause) within the restraint of trade doctrine;
  • the phrase "engaged or concerned or interested" has often been included in standard precedents for drafting non-competition covenants throughout the last century and covers any size of shareholding (no realistic alternative construction of the word in this context was put forward); therefore the restrictive covenant would be an unreasonable (and void) restraint of trade unless the word could be severed and removed from the rest of the clause;
  • a threefold approach (based primarily on a Court of Appeal decision in 2010) should apply when considering whether severance is possible, namely:
    1. the words to be severed must be capable of being removed from the non-competition covenant without the need to add to or modify the wording of the remainder;
    2. the remaining terms must continue to be supported by adequate consideration (this will not normally be an issue in the usual post-employment situation); and
    3. removal of the unenforceable provision must not generate any "major change" in the overall effect of all the post-employment restraints in the contract.  The employer must establish that its removal would not do so.  The focus is on the legal effect of the restraints, not on their perhaps changing significance for the parties.

Applying this severance principle to the facts of the case, the court held that the words "or interested" were capable of being severed and that therefore the remaining, reasonable parts of the covenant were enforceable against Ms Tillman.  


Restrictive covenants along these lines are often found in the context of share or business sales where departing sellers may sign up to certain post-completion restrictions. The Supreme Court's decision may be helpful for entities seeking the benefit of such restrictions by confirming that a court may sever impermissibly wide restrictions and yet find the remaining, reasonable provisions enforceable. However, the position is not yet crystal clear as case law may develop around the meaning of "major change" in limb three of the severance test; furthermore, all restrictive covenants will continue to be void as restraints of trade unless the business has a legitimate proprietary interest to protect (and does so reasonably). The Supreme Court advised that courts must continue to adopt a cautious approach to the severance of post-employment restraints, and warned that companies which are victorious on severance tests may still encounter adverse costs implications - so caution must continue to be exercised when drafting in this area.

Tillman (Respondent) v. Egon Zehnder Ltd (Appellant) [2019] EWCA Civ 1054

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

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

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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 (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

To Use 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.


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.


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