In East of England Schools CIC (trading as 4myschools) v Palmer & Another [2013] EWHC 4138, the High Court considered the enforceability of the restrictive covenants of a recruitment consultant where much of the information being protected by the covenants was in the public domain.

The departing employee, Ms Palmer, argued that all material information relating to her clients was publicly available and that the clients showed little loyalty to a particular recruitment consultant. As a result, she argued that there was no legitimate business interest capable of protection and her non-solicitation and non-dealing covenants were unenforceable. The court disagreed. It said that, although clients were free to ‘shop around', a central part of her role as a recruitment consultant was to build relationships with clients, and that a good, trusting relationship could make the difference between otherwise equal consultancies in a highly competitive marketplace. It also said that, although much information was available publicly, the employee would still be privy to certain key information which was not publicly available including client personalities, likes, dislikes and any special requirements. The covenants were therefore upheld.

This decision is helpful to employers as it shows that there can still be a legitimate business interest to protect, even in the ‘information age' where most information can be found online and where there is relatively little loyalty from clients and customers. To enforce such covenants, however, the employer will have to show that there is ‘something more' (for example knowledge of non-public confidential information or strong relationships) which means that the particular employee could harm the business when they leave.