Last week the High Court revisited a rarely used aspect of the law concerning restrictive covenants, namely that it is not possible to purchase a period of restraint.
For a post termination covenant to be valid, it must go no further than protecting the employer’s legitimate business interests. These are clients, confidential information and a stable workforce. A covenant that goes beyond what is reasonable, for example in length or in covering clients the employee has never dealt with, will be void. It is not possible for the employer to buy the restraint, as it is for example in certain countries such as Germany, even if this would mean the employee being fully paid for the period. It is a matter of public policy that employees should not be unreasonably restrained from following their profession. Likewise it is a matter of public policy that an attempt to pay the employee to get around this will fail.
In the case of Bartholomews Agri Food Ltd v Thornton  EWHC 648, the High Court refused to prevent an agronomist from contacting former clients when working for his new employer, a rival agricultural supply business. Even though he had only dealt with customers amounting to 1% of his former employer’s turnover, his covenant restricted him from contacting any of them, whether or not he had dealt with them before. The covenant was judged to be void on the grounds of restraint of trade. The fact that he would be paid for the period of restraint made no difference. As the judge said: “To my mind it is contrary to public policy in effect to permit an employer to purchase a restraint.”