Are Restrictive Covenants Actually Worth Anything? A Recruitment Lawyer’s Honest Answer

“They’re not worth the paper they’re written on.” It’s one of the most repeated pieces of informal legal folklore in the recruitment industry — and like most folklore, it’s partly true and mostly misleading. Barry Cullen, founder of recLAW, has spent years litigating restrictive covenant disputes on both sides of the argument. His answer is more nuanced than the folk wisdom: whether a restrictive covenant is worth anything depends almost entirely on whether it was drafted properly in the first place — and most of them aren’t.

This post is for information only and does not constitute legal advice. Speak to a specialist in recruitment law for guidance on your specific situation.

What Makes a Restrictive Covenant Enforceable

Under English law, restrictive covenants in employment contracts are presumed unenforceable unless the employer can demonstrate two things: that the covenant protects a legitimate business interest, and that the restriction goes no further in scope or duration than is reasonably necessary to protect that interest (DavidsonMorris). Courts will not rewrite an overly broad covenant to make it enforceable. If the clause is too wide, it fails entirely.

That second condition — going no further than necessary — is where most off-the-shelf restrictive covenants fall down. A 12-month non-compete covering the entirety of “the recruitment industry” is unlikely to survive scrutiny. A 6-month restriction on soliciting the specific clients the consultant actually worked with during the last 12 months of their employment, in the specific geographic market they served, is considerably more defensible.

The legitimate business interests UK courts recognise in the recruitment context are specific: protecting confidential information and trade secrets, protecting established client relationships, protecting candidate relationships, and maintaining workforce stability. A clause that goes beyond those interests — or that could be read as simply preventing competition rather than protecting a specific interest — is vulnerable.

The Covenants That Actually Protect Recruitment Businesses

There are several distinct types of restriction, and they don’t all work the same way:

Non-solicitation clauses restrict the departing consultant from actively approaching clients or candidates they dealt with during their employment. These are generally more enforceable than outright non-compete clauses because they’re easier to justify as protecting a specific business interest, and because a court can see the direct connection between the clause and the relationship being protected.

Non-dealing clauses go further — they restrict the departing consultant from doing business with former clients or candidates regardless of who initiated the contact. These are harder to enforce because they prevent the departing consultant from responding to approaches made to them rather than approaches they make. A client who proactively contacts their former consultant to use their new firm is a harder case for the original employer to make.

Non-compete clauses are the broadest and the most contested. Restricting a departing consultant from working for any competitor in the sector faces the highest bar. Courts and employment tribunals are reluctant to restrict someone’s ability to earn a living, and the restriction must be demonstrably narrower than the consultant’s entire career options. For senior individuals with specific, demonstrable access to genuinely confidential commercial strategy, these can succeed — but blanket non-competes for junior consultants rarely hold up.

Confidentiality clauses are the most reliably enforceable. A consultant who takes a client database, candidate records, or pricing information has taken confidential business property, and the duty of confidentiality survives employment whether or not it’s written into the contract. In practice, the most straightforward restrictive covenant claims combine a specific breach of non-solicitation with a confidentiality breach — taking candidate records and immediately using them to contact those candidates at a new firm, for instance.

Real Recruiters Are Taken to Court

The “not worth the paper” narrative persists partly because recruitment owners assume the cost and hassle of enforcement makes restrictions pointless. Barry’s experience — and the case law — tells a different story. Recruiters are taken to court for breaching restrictions, and when the covenant is well-drafted and the breach is clear, employers win. The combination of a properly drawn non-solicitation clause covering a specific client list and a documented breach — email evidence of contact with restricted clients, LinkedIn messages, testimony from the clients themselves — can support an injunction application and a damages claim.

The cost of enforcement is real: an urgent injunction application can run to several thousand pounds in legal fees. But when the client relationships being poached generate significant annual revenue, the commercial case for enforcement is clear. The folk wisdom that covenants are never worth enforcing is wrong. The accurate statement is that poorly drafted covenants aren’t worth enforcing — because they won’t survive challenge.

The Regulatory Landscape Is Shifting

In November 2025, the UK Government published a working paper seeking views on potential reform of non-compete clauses in employment contracts (GOV.UK). Options under consideration include a statutory limit on non-compete duration — potentially as short as three months — an outright ban below a salary threshold, or a combination of both. No legislation has been confirmed, but the direction of government thinking is clear: non-compete clauses are under scrutiny, and restrictions that might currently survive judicial challenge could become unenforceable by statute within the next few years.

For recruitment businesses, this makes the next 12 to 18 months an important window to review employment contracts. If non-compete duration is eventually capped at three months, clauses drafted to protect 12-month periods will need to be restructured — with greater reliance on well-drawn non-solicitation, non-dealing, and confidentiality provisions to do the work that broader non-competes currently do. Getting specialist advice on that restructuring before the regulatory change is considerably cheaper than responding to it afterwards.

What This Means for Garden Leave

Garden leave — placing a resigning consultant on notice but requiring them not to work or contact clients during that period — interacts with post-termination restrictions in ways that matter. A consultant on six months’ garden leave followed by a six-month non-compete faces a combined 12-month restriction period, which courts may view as disproportionate if the non-compete period on its own would have been considered borderline. Garden leave and post-termination restrictions need to be considered together when drafting employment contracts, not as independent provisions.

The Shareholder Agreement Dimension

For agency owners, the most significant restrictions often aren’t in employment contracts at all — they’re in shareholder agreements. When a business partner exits, the question of what they can do with client and candidate relationships they’ve built during their time as a co-owner is distinct from the employment law framework that governs departing consultants. Shareholder-level restrictions, properly drafted at the outset of a partnership, can cover longer periods and broader scope because a shareholder is in a fundamentally different position from an employee. But they need to be drafted — and most smaller agencies enter partnerships without one.

The Practical Checklist

• Review your employment contracts. If your restrictive covenant clauses were copied from a template or haven’t been reviewed since the business was founded, they may not reflect the business you now have or the relationships you now need to protect.
• Make restrictions specific. Name the types of relationships covered. Define the geographic scope. Set a proportionate duration. A specific, narrow covenant is worth far more than a broad, sweeping one that a court will dismiss.
• Combine non-solicitation with confidentiality. The combination is more robust than either alone, and the confidentiality obligation survives the employment relationship regardless of the non-compete landscape.
• Don’t wait for a dispute to review. The time to get your contracts right is before the consultant hands in their notice, not after.
• If you have a business partner, get a shareholders’ agreement. The cost of drafting it now is a fraction of the cost of litigating what it should have said when the partnership breaks down.

Real Talk

Restrictive covenants are worth what the drafting is worth. A well-constructed covenant protecting a specific, legitimate interest with proportionate scope and duration is a genuine legal tool. One copied from a template that a court would strike out in minutes is not. The question isn’t whether they work — it’s whether yours do.

This post is inspired by the RecTalk episode with Barry Cullen, founder of recLAW: Settlement Agreements in Recruitment | Restrictive Covenants, Employment Law & AI. Watch the full conversation on YouTube. Find out more about recLAW at reclaw.co.uk.

Read more on this from RecLaw https://reclaw.co.uk/legal-advice/restrictive-covenants-recruitment-enforceable/

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