Restrictive Covenants — How Long Can They Last?

Why this matters

Employment contracts are not just paperwork. They set the rules for pay, hours, notice, duties, benefits, confidentiality and what happens when the relationship ends. When a dispute starts, the tribunal or court will usually begin with the written terms, then look at what actually happened in practice.

For restrictive covenants, the key question is rarely whether the employer used confident language. The real question is whether the term is lawful, whether it was properly agreed, and whether the employer acted consistently with the contract. That is where employees often have more leverage than they first think.

You do not need to become a lawyer before you respond. You do need to know which part of the contract matters, what evidence supports your position, and whether the issue is urgent enough to need action before the employer treats silence as agreement.

The UK legal starting point

The main statute is common law restraint of trade. Depending on the issue, the Equality Act 2010, the Working Time Regulations 1998, the TUPE Regulations 2006 and common law contract rules may also matter. The important point is that a contract cannot remove statutory employment rights.

Case law such as Nordenfelt v Maxim Nordenfelt shows that tribunals and courts look at substance, not only labels. If the written term says one thing but the employer behaves in a different way, that behaviour can affect how the contract is interpreted.

This is why a practical review starts with both the document and the facts. The clause, the employer explanation, previous practice and your own response all sit together. A strong argument often comes from showing that the employer is using a clause more widely than the law allows.

What to check in the document

Start with the exact wording. Look for words like may, must, discretion, reasonable, business needs and from time to time. These phrases can change the practical effect of a clause. A short sentence can give the employer wide power if it is not limited by reasonableness or consultation.

Then compare the contract with offer letters, staff handbooks, bonus plans, emails and what has happened in practice. A right can be contractual even when it sits outside the main agreement. Equally, a handbook term may not be contractual if the document says it is guidance only.

Check whether the clause applies during employment, after employment, or both. Also check whether it applies to all employees or only to certain roles. Wide wording aimed at every employee can be easier to challenge because it may not be tailored to the actual risk the employer says it is protecting.

When the employer may be overreaching

Warning signs include broad discretion, unclear pay wording, one sided change powers, long restrictions after leaving, and clauses that appear to stop you raising legal rights. The employer may still point to those clauses, but pointing to a clause is not the same as proving it is enforceable.

Employees should also watch for pressure. If you are told to sign immediately, accept a change without discussion, or keep quiet about a dispute, pause before agreeing. Written objections, careful questions and a record of the timeline can protect your position later.

An employer may also overreach by presenting a business preference as if it is a legal requirement. Ask for the reason in writing. If the answer changes, is vague, or ignores the contract wording, that can become useful evidence if the dispute later reaches ACAS, a tribunal, or settlement discussions.

Practical steps before you respond

Keep a clean copy of every version of the contract. Save emails about the change or clause. Write down who said what, when it was said, and how you responded. If pay, hours or duties have changed, keep payslips, rotas, messages and calendar entries.

If you disagree, say so clearly and politely. You can ask the employer to explain the legal basis, the business reason and whether the change is temporary or permanent. If the issue affects protected characteristics, sickness, pregnancy, whistleblowing or trade union activity, the Equality Act 2010 or automatic unfair dismissal rules may also be relevant.

Do not resign or refuse work impulsively without checking the risk. Some contract disputes justify a firm response, but timing and wording matter. A short written objection may preserve your position better than a heated message, especially where constructive dismissal or unlawful deduction from wages might be considered later.

How ProHearings can help

A contract review can identify the clauses that matter, explain the risks in plain English and suggest the questions to ask before you sign or challenge the term. That is often enough to turn a vague worry into a clear action plan.

If the contract issue has already become a dispute, it may also connect with unlawful deduction from wages, constructive dismissal, discrimination, TUPE, redundancy or settlement negotiations. You can read more in our employment tribunal articles or browse the contract law section.

The aim is not to make the document more complicated. It is to make your next step clearer. You should know what the clause probably means, what the employer may argue, what you can push back on, and whether the issue needs tribunal focused preparation.