On 9 September 2025, the Competition and Markets Authority (CMA) released guidance entitled "Competing for talent" (the Guidance). The Guidance addresses "what businesses need to know when recruiting workers and setting pay and other working conditions", to better understand how competition law applies in labour markets. It expands on earlier, high level guidance on advice for employers on how to avoid anticompetitive behaviour, published by the CMA in February 2023.
In recent years competition authorities around the world have increased their focus on anticompetitive behaviour in labour markets. In May 2024 the EU Commission published a Policy Brief on Antitrust in Labour Markets, and in June this year it adopted the first infringement decision concerning a no-poach agreement in the labour market, imposing a fine on Delivery Hero and Glovo of €329 million for participating in a cartel in the online food delivery sector (see our briefing here).
Several Member States, including Belgium, Denmark, Finland, France, Portugal and Spain, have also carried out investigations or issued reports in relation to labour markets. In February 2025, the Portuguese Competition Authority imposed fines of €3.1 million for non-poach agreements that restricted employee mobility in the technology consulting sector over a seven-year period. In the US, (US v Lopez) the DoJ secured its first criminal conviction in April 2025 in a labour market antitrust case for a wage fixing conspiracy.
In this context, the CMA Guidance will be welcomed as it provides more detailed information around the key areas of concern that will be relevant to all businesses, regardless of the sector they operate in.
Competitors in labour markets
The Guidance confirms that issues such as wages and working conditions should firmly be viewed as more than simply HR issues, reflecting the reality that competing for customers or services is only one type of competition facing a business, competing for talent being another. Businesses competing for the same talent will therefore be viewed as competitors in the context of labour market issues, regardless of whether or not they compete for the same customers or services.
The Guidance covers three main types of anti-competitive behaviour in labour markets, namely: no-poaching, wage-fixing and the exchange of competitively sensitive information.
No-poaching
No-poach agreements are agreements under which businesses agree not to hire or poach another business's employees. This can include agreements not to hire certain employees outright ('no-hire agreement') or agreements that prevent the solicitation of employees with job opportunities ('no-cold calling agreements'). Importantly, the Guidance notes that no-poaching agreements do not have to be mutual to breach competition law.
The Guidance differentiates between non-poaching agreements and non-solicitation clauses that are often included in certain commercial agreements, such as consultancy or secondment agreements. In order not to infringe competition rules non-solicitation clauses will need to meet the so-called ancillary restraints test, which requires a restriction to be objectively necessary and proportionate to a legitimate agreement, and not wider than necessary in order to achieve the legitimate objective, including in duration and geographic scope.
Wage-fixing
Businesses that compete for the same talent should not agree to fix pay, benefits or other terms and conditions of employment. This includes agreements or coordination on wage increases or on salary caps.
The Guidance provides two hypothetical examples of wage-fixing, one through an industry forum and the other in the context of a trade association meeting. In either context, businesses involved in such events should caution individuals attending on behalf of the business to be alive to potential anti-competitive discussions that may arise and ensure that adequate training is available, in order to avoid the business being involved in anti-competitive wage-fixing agreements.
Exchanging competitively sensitive information and benchmarking
Much guidance and caselaw is already available around the exchange of information between competitors and the criteria to take be taken into account in order to determine whether the exchange amounts to a breach of the competition rules (see for example chapter 8 of the CMA's guidance on horizontal agreements and our article on 'Information exchange – pitfalls from recent case law and enforcement practice here.)
The Guidance expands on these principles in the context of labour markets and helpfully outlines certain conduct that is more likely or less likely to raise competition issues insofar as information exchange is concerned:
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Collective bargaining
Finally, the Guidance also covers the practice of collective bargaining negotiations between employers and employees' representatives, typically occurring through trade unions, or when self-employed workers negotiate on their behalf, in order to determine issues such as minimum pay rates and other minimum working conditions.
The Guidance makes it clear that the CMA will not seek to enforce competition law when workers and employers come together in the context of a genuine collective bargain, regardless of whether the workers are employed or self-employed. Any coordination around how each side will approach the negotiations, that could otherwise be seen as potentially infringing the competition rules, will generally be treated as necessary for the collective bargaining process.
But the Guidance flags that employers should not exchange competitively sensitive information between them in this context, unless it is absolutely necessary and it is not possible to achieve the purpose of the exchange by other means, such as using an independent party to aggregate and anonymise the data. This also applies to self-employed workers and their representative bodies. Any exchanges of competitively sensitive information outside the scope of what is strictly necessary for the purpose of the collective bargaining process risk being in beach of the competition rules.
Focus on compliance
The increased focus on competition law in labour markets and the CMA's latest guidance highlight the need for businesses to ensure they are fully on top of the employment related issues that could potentially infringe the competition rules and how to avoid such breaches.
Employment related issues must be part of any competition compliance programme and appropriate training and guidelines should be available for all employees involved in recruitment and retention. In addition, it is essential for businesses to have in place internal reporting processes as part of their risk management strategy to allow staff to raise any issues and concerns as early on as possible.
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.
