General Rule: Void unless reasonable in respect of subject matter, time and distance.
1st step An employer must have a legitimate business interest to protect
(e.g. trade secrets, goodwill, customer connections)
What is e/er claiming rights over ? ie, a salesman knows and deals with customers face to face and could potentially give details re deals, customer base to new e/er and then undercut former e/er and take business away
Ie, a research + designer for a drugs company working in a medical capacity has lots of secret info not in the public knowledge
2nd Step the restraint must be reasonable
- must be no wider in protecting the type of work
- no wider than necessary in time and area. Taxi company Manchester
- If they are drafted too widely then it may be void.
- If the Court decides its unreasonable the whole clause could fail
ie – senior management in a coach company, e/er says after leaving that he cant work for any coach or tour operator in a 3 mile radius for 12 months
– is 12 months too long ? how long till the info goes out of date ?
– if it’s a computer company 12 months is too long as it would be obsolete as technology changes all the time
– is 3 miles too far ? decide for yourself
– is coach AND tour operator too wide ? yes, too restrictive, basically stops e/ee working in the coach trade within 3 miles
– you can only stop them working within your FIELD of work
– tour operator is outside the field therefore too restrictive
– if its too restrictive WHOLE clause fails…… unless…….. blue pencil rule
Blue Pencil Rule you can use this rule in some circs to cross out a certain bit of a
Court can sever offending parts of clauses
In WD cases, -ve covenants are not enforceable but implied terms still are
in the above example, it cant work for crossing out “3 miles” cos the clause cant operate and wont make sense
it could be used to cross out “or tour operator” as clause still makes sense, is valid and sensible
if it leaves a gap, the blue pencil CANNOT be used