Handling Requests To ‘Get Around’ Restrictive Covenants In The UK

If you run a small business, restrictive covenants are one of your key tools for protecting customer relationships, confidential information and hard‑won goodwill.

But what happens when a departing employee asks you to relax their restrictions, or a star candidate tells you they’ve got covenants lingering from a previous role and wants to “work around” them?

This guide walks you through what is and isn’t lawful under UK law, practical options for employers, and how to design covenants that rarely need workarounds in the first place. Our aim is simple: help you protect your business without falling into heavy‑handed or unenforceable territory.

What Are Restrictive Covenants And Why Do They Matter?

Restrictive covenants are clauses in employment contracts that limit an employee’s activities after they leave. Common types include:

• Non‑competition – a time‑limited restriction on working for a competitor or starting a competing business.
• Non‑solicitation – preventing approaches to your customers, suppliers or staff.
• Non‑dealing – stopping ex‑employees from doing business with your customers, even if the customer approaches them.
• Anti‑poaching – preventing the hiring of your employees for a defined period.
• Confidentiality – ongoing duties not to use or disclose your confidential information or trade secrets.

Under the common law restraint‑of‑trade doctrine, post‑termination restraints are only enforceable if they protect a legitimate business interest (such as confidential information, client connections or workforce stability) and go no further than reasonably necessary in scope, geography and duration.

In practice, that means carefully tailored non‑compete clauses and related restraints are more likely to be enforceable than broad, catch‑all drafts. Overlong or generic restrictions can backfire - either being struck down entirely, or by prompting disputes that distract your team at a critical moment.

It’s also worth noting the policy landscape: the UK Government has indicated an intention to cap non‑competes in employment contracts at three months when Parliamentary time allows. As at the time of writing, this proposal is not yet in force, but it underlines the importance of proportionate, targeted restrictions.

Can You Lawfully “Get Around” Restrictive Covenants?

Short answer: you can’t “evade” enforceable covenants, but you can manage them lawfully and pragmatically.

For your own employees, you can vary, carve out or waive restrictions where sensible - provided you follow a fair process and obtain valid consideration if the change occurs during employment. For incoming hires bound by old covenants, you must avoid inducing a breach; instead, take practical steps to keep them compliant while still delivering value in their new role.

Here’s how to think about “workarounds” without stepping over legal lines:

• Work within the four corners of the contract: If a covenant is reasonable and enforceable, plan roles and responsibilities to stay outside the restricted zone until it expires.
• Negotiate, don’t ignore: Where a restriction is genuinely too broad for the employee’s role or your market, consider agreeing a limited waiver or carve‑out that preserves your core interests.
• Use alternative protections: If the real risk is data leakage or client poaching, you may be better served by robust confidentiality, IP and non‑dealing terms rather than an aggressive non‑compete.
• Avoid sham arrangements: “Workarounds” that are non‑compliant in substance (for example, funneling work through a spouse’s company) can inflame disputes and invite injunctions.

If you do need to update or relax terms, follow a proper process for changing employment contracts, get the employee’s written agreement, and keep clear records of the commercial rationale.

Options When Your Employee Asks To Relax Their Restrictions

Employees will sometimes ask for flexibility - for example, to join a specific non‑competing project, to freelance in a niche that doesn’t touch your clients, or to pursue an unrelated opportunity. You don’t need to reflexively say no. Instead, consider the measured options below.

1) Limited Waiver Or Carve‑Out

Where appropriate, you can issue a written waiver limited to a narrow activity, client segment, geography or timeframe. For example, permitting an ex‑designer to freelance for overseas clients only, or to service one named account that you no longer target. Make the waiver conditional on strict confidentiality and non‑solicitation.

2) Garden Leave

Sometimes the cleanest “workaround” is time. If your contracts include garden leave provisions, placing a departing employee on paid leave can allow knowledge to go stale, client ties to be re‑cemented with your team, and emotions to cool - reducing the need for heavy post‑termination restraints.

3) Role Design And Non‑Compete Alternatives

If a non‑compete is on the line, ask: what are you really trying to protect? If the core risk is client migration, a targeted non‑solicitation/non‑dealing term often does the job with less friction. If it’s sensitive know‑how, tighten confidentiality and access controls, and consider a standalone Non‑Disclosure Agreement to bring the duty to the forefront.

4) Settlement Agreement On Exit

In contested departures, a settlement agreement can recalibrate the restrictions, document a mutual non‑disparagement pledge, confirm return/deletion of data, and secure undertakings. Draft narrowly and tie any waivers to compliance with the rest of the terms.

5) Release In Exchange For Consideration

Mid‑employment changes generally need consideration to be binding. If you’re relaxing a covenant during employment (say, to allow limited external work), provide a concrete benefit (for example, a stipend or other contractual value) so the variation is enforceable.

6) Keep It Proportionate

Courts assess reasonableness at the time of contracting. If a 12‑month restriction ever made sense, that might not be true forever. Be open to reducing duration or territory if the employee’s seniority, client access or market realities have shifted - and consider whether a shorter period aligns better with current enforcement trends for a 12‑month non‑compete.

Hiring Someone With Existing Covenants: De‑Risking Your Recruitment

Bringing in experienced talent often means dealing with their old restraints. The key is to get the benefit of their skills without exposing your business to claims of inducing a breach of employment contract or misuse of trade secrets. A practical onboarding plan can make all the difference.

1) Ask For The Paperwork Upfront

Request the candidate’s full set of restrictions before you make an offer. Assess the scope, duration and geography and compare these to the duties of the role you’re recruiting for. If there’s material overlap, rethink the scope of the role or start dates to avoid the restricted period.

2) Map The Role To Avoid The Red Zones

Adjust duties, territories, client lists and KPIs so the hire can contribute without breaching their restraints. For example, allocate them to internal projects, different product lines, or geographies outside the restricted area until the covenant expires.

3) Build Contractual Safeguards

Include warranties in your offer and Employment Contract that the hire is not in breach of third‑party obligations and won’t bring in or use confidential information from previous employers. Make breach a disciplinary matter and grounds for termination.

4) Establish Clean‑Team Protocols

Prohibit the use of old customer lists, proposals, code or strategy decks. Keep them away from pitching to or servicing the specific clients they interacted with in the restricted period. Train their managers on the boundaries.

5) Undertakings To The Former Employer (If Needed)

In higher‑risk scenarios, a measured letter to the former employer confirming your understanding of the restraints and your internal guardrails can de‑escalate tensions. Consider asking the employee to provide non‑use/non‑solicit undertakings if concerns have been raised.

6) Watch For Relationship Protections

If a candidate will interact with partners, agents or introducers tied to their old employer, consider a non‑circumvention clause in your supply or collaboration contracts to reduce the risk of disputes over channel conflicts.

Drafting Covenants That Rarely Need “Workarounds”

The best time to manage disputes is before they happen. Thoughtful drafting makes your covenants both more enforceable and less likely to require later concessions.

Pin Down The Legitimate Interest

Be explicit about what you’re protecting: client relationships in a defined sector, confidential pricing and pipeline data, or stability of a small specialist team. The clearer your interest, the easier to justify the restraint.

Match Scope To Risk

• Duration: Pick the shortest period that truly protects your interest (often 3–6 months for many roles, longer for senior executives with deep client access).
• Geography: Limit to territories where the employee actually worked or had influence.
• Activity: Target specific competing activities; avoid blanket bans unrelated to the role.
• Cascade drafting: Consider tiered time/territory options so a court can sever the excessive parts and leave a reasonable core.

Layer Your Protections

Relying solely on a non‑compete is rarely optimal. Combine narrower restraints with strong confidentiality, IP assignment and return‑of‑property obligations. Reinforce this with technology controls and leaver workflows (e.g. disabling access, auditing downloads, exit interviews).

Refresh On Promotion Or Role Change

If someone moves into a higher‑risk, client‑facing or strategy role, update their covenants at that point (with appropriate consideration) to reflect their new responsibilities. Ensure your process for changing employment contracts is followed each time.

Keep Policies Current

Policies are not a substitute for contract terms, but they help. Make sure your confidentiality and competition policies are aligned with your contractual restraints, and consider using a standalone Non‑Disclosure Agreement for contractors or partners with access to sensitive information.

Use Clear, Modern Language

Ambiguity fuels disputes. Define key terms (client, competitor, confidential information) and include examples relevant to your industry. Keep the drafting plain English so employees know exactly what’s off‑limits.

Enforcing Covenants Proportionately: Practical Steps

Most situations don’t require rushing to court. A measured response can protect your position while preserving relationships and keeping costs under control.

1) Early Engagement

As soon as you learn of a potential breach, gather facts: dates, client interactions, documents accessed, and any communications that raise concern. A polite but firm letter reminding the ex‑employee of their obligations (and proposing practical boundaries) often resolves matters quickly.

2) Evidence And Forensics

Lock down logs of downloads, emails, CRM exports or unusual access before and after notice was given. Ensure your investigation respects privacy and data protection laws. Objective, contemporaneous evidence is crucial if you later seek undertakings or an injunction.

3) Proportionate Remedies

If harm is imminent (such as targeted client poaching), consider seeking undertakings or, as a last resort, an injunction. Springboard relief may be available where misuse of confidential information gives an unfair head start. Aim for remedies that stop the harm, not punish the leaver.

4) Settlement With Boundaries

Where issues surface, a carefully drafted settlement can re‑set the guardrails, confirm deletion/return of data, and put disputes to bed. Keep the focus on practical protections rather than punitive terms.

5) Keep An Eye On Culture

Over‑enforcement can dent your employer brand. Be firm on core protections but fair in application. This balance helps you retain staff and attract senior talent who value trust and clarity.

6) Review Your Templates

After every enforcement or waiver episode, review your Employment Contract templates. If a pattern keeps sending you to lawyers, it’s a signal to recalibrate your post‑termination terms or to lean more on targeted non‑solicit and confidentiality provisions.

Key Takeaways

• You can’t “get around” enforceable restrictions by ignoring them - but you can lawfully manage risk with narrow waivers, role design and proportionate alternatives.
• Focus on the real interest you’re protecting. Target non‑solicitation, non‑dealing and confidentiality if a broad non‑compete feels excessive.
• When hiring someone with existing restraints, gather their covenants early, map duties to avoid restricted zones, and build warranties and clean‑team protocols into your Employment Contract.
• Draft for enforceability, not intimidation: clear scope, realistic duration, relevant geography, and layered protections make disputes less likely and outcomes more predictable.
• Use proportionate enforcement: evidence first, sensible letters next, and only escalate to undertakings or injunctions if there’s real, urgent harm.
• Keep your toolkit current: review your non‑compete clauses, consider a Non‑Disclosure Agreement where appropriate, and refresh terms on promotion using a fair process for changing employment contracts.
• If a dispute arises, act quickly and calmly - and remember that a negotiated solution often protects your business better than costly litigation over a contested 12‑month non‑compete.

If you’d like tailored help reviewing your covenants, updating your templates, or managing a sensitive hire or exit, our team is here to help. You can reach us at 08081347754 or team@sprintlaw.co.uk for a free, no‑obligations chat.