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Ben Jones
Ben Jones, UK Lawyer
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Hi How enforceable is a non poach agreement in practice? I

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How enforceable is a non poach agreement in practice?

I work for a hedge fund where a colleague of mine left under an agreement that states he should not employ anyone from the firm for a period of at least 12 months. I am unhappy at this place and for my own reasons have handed in my notice. If the opportunity were to arise to work with my ex colleague who left I would be keen to do so. Does the non poach clause in his agreement prevent this being possible? Would seem unfair as I want to leave and he would not be soliciting me, I would be going to him if anything.


Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Post-termination restrictive covenants are a rather common occurrence in employment relationships. An employer would want to protect their business from a departing employee's knowledge, business connections, influence over remaining staff, etc. However, a covenant that restricts an employee's post-termination activities will be automatically unenforceable for being in restraint of trade, unless the employer can show that it was there to protect a legitimate business interest and did so in a reasonable way.


Legitimate business interests (LBIs) are commonly accepted to include:

  • Goodwill (including supplier and customer connections)

  • Trade secrets and confidential information

  • Stability of the workforce


Any clause that seeks to prohibit the poaching of employees will need to consider how long it will be before the outgoing employee's influence over other employees will be eliminated and replaced, and the scope of the classes of employees over whom such influence will exist. It is also important to remember that a poaching clause would usually rely on the employee actively pursuing and influencing an existing employee to leave their employment to join them, not the employee voluntarily leaving and simply using this as an opportunity to take up alternative employment, which just happens to be with that employee’s new business.

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this?

Customer: replied 4 years ago.
Hi Ben

Sorry, I got confised when I asked the question it said I wasn't logged in so didn't think it would be in my account. Also when I paid the £33 it indicated I'd be asking someone called Jo c. But never mind, excuse my incapabilities please.

If my current employer were to make me redundant, would that make the non poach on my ex colleague less enforceable in relation to me?

Thanks again
Hi, no problem, Jo is a colleague of mine but she does not deal with employment law, she is just on of the other lawyers on the site that helps in other areas.

If you were made redundant it would not actually change anything in terms of the enforceability of the restrictions as the contract would not be breached by the employer and it would just be a dismissal as any other.

If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Customer: replied 4 years ago.
Sure, I will rate you today. Just to clarify, are you saying if I am made redundant and try to get a job with my ex colleague his non poach can still apply to me? Surely this is something my current employer would find difficult to uphold in that event?
If someone is made redundant due to a genuine redundancy situation and the employer has not breached their contract of employment in the process, then these restrictions would still potentially apply. The contract would remain valid and with it would the restrictions. It is certainly possible for a restriction to apply to an employee and be enforceable even if they are made redundant, depending on what the employee actually does. As mentioned, just working for a competitor and minding your own business is unlikely to be enforced, but if, having been made redundant, you go on to work for a competitor and then trying to use confidential information, trade secrets, client lists and so on from your previous employer, then they could still try and enforce the restriction, even if you were made redundant.
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