This post by Barry Cullen of recLAW is part of our blog series, “The Recruitment Rule I’d Break”.
Say that in any recruitment office and you’ll get nods around the room. It’s probably the most repeated piece of wisdom in our industry. It’s also wrong often enough to be expensive and it’s the rule I’d break.
Why it no longer works
The saying is half right. Plenty of restraints really aren’t worth much and that comes down to how they were written. Most are lifted straight from an old contract and never revisited as someone moves from consultant to team lead. So, one clause ends up covering everybody, drafted wide enough to catch every role in the business and the wider it goes the weaker it gets. Simply put, a clause that tries to restrain everything ends up restraining nothing.
But it’s worth asking who repeats it and when. An owner hiring an experienced biller wants that person billing as fast as possible. If the new hire is in breach of restraints owed to their old employer, that owner has every commercial reason to decide the clause is worthless.
Crack on. Not worth the paper.
Their tune changes the day one of their own people walks out and does exactly the same thing. That’s not legal analysis, it’s motivated reasoning. And because the industry keeps repeating it back to itself, you can end up gaslighting yourself into thinking you’re safe.
The other reason it survives is that enforcement is quiet. Cases settle, undertakings get given, injunctions are agreed at the door of the court and none of it is reported anywhere you’d see it. So, the only stories that travel are the ones where nothing happened.
Here are two that didn’t.
One matter I acted on ended with the outgoing party paying £5,000 a month for thirty-six months. Picture that, the first of every month for three years, you’ve got to bill five grand to send to your old boss, before you earn a single penny for yourself.
In another, someone breached their restraints. We got injunctive relief, they breached that too, so we applied for a contempt finding. They paid a £20,000 fine and the judge told them they had come very close to spending a few days in a cell thinking about it.
What to do instead
Stop asking whether restrictive covenants are enforceable. Ask whether yours are.
Four things decide it:
- Restraints written proportionately for that person and that role, not one clause copied across the whole business.
- A clean trail of what actually happened and when.
- Deep enough pockets, because injunctions and damages claims aren’t cheap.
- The genuine will to follow it all the way.
Get the first two wrong and you haven’t got a case. Get the last two wrong and you’ll send a few nasty letters and nothing else will happen, which is exactly how the myth keeps renewing itself.
So, if you’re hiring, ask to see the contract before the start date, not after the letter arrives.
And if you’re leaving, don’t take your position from what the industry says, or from an AI tool that agrees with everything you feed it.
The covenants that aren’t worth the paper are the ones nobody could be bothered to write properly. That’s a drafting problem, not a law problem. Don’t let a saying make your decisions for you.
About the author
Barry Cullen
Partner & Solicitor, recLAW | LinkedIn
recLAW is the specialist law firm for the recruitment industry. Barry acts for agencies, recruitment business owners and directors across the UK on restrictive covenants, fee disputes, debt recovery, backdoor hires, settlement agreements and employment matters. recLAW has handled over 3,400 disputes and recovered more than £13.3 million for recruiters. Need legal support for your business? Let’s talk.
reclaw.co.uk | info@reclaw.co.uk | 0203 778 0605
