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The death knell for non-competes?

The issues raised by the government's consultation on non-compete clauses hindering innovation are more nuanced than might be thought, writes Daniel Oudkerk QC

10 May 2016

From an international perspective, senior employees often work in a global market. The relevant employers will not always be UK-based, the contracts may be governed by foreign law, and the employees will often work in more than one jurisdiction. Complex cross-border litigation would be inevitable. 'Non-compete' reform is on the agenda in a number of jurisdictions; for example, in March of this year, Massachusetts proposed restrictions on non-competes, which would limit non-competes to a one-year period and exclude low-paid workers. In practical terms, that 'restriction' would reflect the current position in the UK, where employee non-competes beyond a year are not enforced.

From a domestic perspective, non-competes are rather old-fashioned and many employers now use garden leave to restrict an employee's ability to move. Typically, a modern employment contract will contain a garden leave clause, which permi...

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