A series of recent decisions has reaffirmed the courts' willingness to scrutinise the drafting of post-termination restrictive covenants closely, particularly where a covenant appears to extend further than is reasonably necessary to protect a legitimate business interest. Employers should not assume that a covenant which was appropriate at the point of hire remains appropriate throughout an employee's tenure, particularly where the employee's role has changed materially.

The practical effect of this trend is that employers are increasingly advised to review key covenants at the point of promotion or role change, rather than relying solely on the terms agreed at the outset of employment. Courts have also shown limited appetite for severing unreasonable elements of a covenant in order to render the remainder enforceable, meaning that poorly drafted restrictions risk being unenforceable in their entirety.

Employers seeking to rely on restrictive covenants, particularly in connection with senior or client-facing roles, should treat covenant drafting as an ongoing exercise rather than a one-off task completed at the point of hire, and this is a point we increasingly raise with clients during the management incentive discussions that accompany a transaction.