Non-Solicitation Agreement (Ireland)

A Non-Solicitation Agreement in Ireland binds the parties to keep specified information confidential and limits how it may be used or disclosed, under the framework of the Employment Equality Acts 1998-2015.

Non-solicitation agreements in Ireland are governed by the common law doctrine of restraint of trade, but they are subject to less stringent judicial scrutiny than non-compete agreements because they are less restrictive in their impact on the employee's right to earn a livelihood. The employee remains free to work for a competitor or establish their own business — they are only prevented from actively targeting the employer's customers, key employees, or suppliers. Irish courts are generally more willing to enforce reasonable non-solicitation clauses than non-compete clauses for precisely this reason.

The leading Irish authorities on the enforceability of restrictive covenants, including non-solicitation clauses, include John Orr Ltd v Orr [1987] ILRM 702 ([1986] IEHC 1) and Apex Fire Protection Ltd v Murtagh [1993]. The courts assess reasonableness by considering the scope of the restriction (which customers, employees, or suppliers are covered), the duration of the restriction, and the legitimate business interest being protected. A non-solicitation clause that is limited to customers the employee actually dealt with, for a period of six to twelve months, is generally regarded as a reasonable protection of the employer's legitimate business interests and is likely to be enforced by the Irish courts.

The European Union (Protection of Trade Secrets) Regulations 2018 (S.I. No. 188 of 2018) interact with non-solicitation agreements where the solicitation necessarily involves the use or disclosure of the employer's confidential customer data. A former employee who uses the employer's customer list — which may qualify as a trade secret under the Regulations — to target customers is potentially in breach of both the non-solicitation agreement and the Regulations. The holder of the trade secret may apply to the High Court under the Regulations for an injunction, damages, and delivery up of infringing materials, in addition to the contractual remedies available for breach of the non-solicitation clause. This dual basis for action significantly strengthens the employer's legal position in solicitation cases involving the use of confidential customer information.

Non-solicitation clauses cover two distinct categories of restriction. Customer non-solicitation restrictions prevent the departing employee from approaching or targeting the employer's customers to divert their business to the employee's new employer or their own business. Employee non-solicitation restrictions (sometimes called non-poaching clauses) prevent the departing employee from recruiting or encouraging their former colleagues to leave the employer and join the employee at their new employer or business. Both types are widely used in Irish employment agreements, particularly for employees in sales, business development, account management, and client-facing roles where the employee develops personal relationships with the employer's customers and close working relationships with colleagues.

Non-solicitation clauses are also commonly used in business sale agreements to prevent the vendor of a business from targeting the customers and employees of the business that has been sold for a specified period after the sale. In this commercial context, the courts are more generous in enforcing restrictive covenants than in the employment context, as the parties are more equal in bargaining power and the restriction typically forms part of the consideration for the purchase price of the business.

The clause should be carefully tailored to the specific circumstances of the employment relationship, as overly broad restrictions — such as those covering all of the employer's customers regardless of whether the employee had any contact with them — are likely to be struck down by the courts as unreasonable.

In practice, employers seeking to enforce a non-solicitation clause in Ireland should move quickly if a breach is suspected. The Irish High Court has jurisdiction to grant an urgent interlocutory injunction to restrain ongoing solicitation activity, applying the three-part test from Campus Oil Ltd v Minister for Industry (No 2) [1983] IR 88. The applicant must show that there is a serious question to be tried, that damages would not be an adequate remedy (which is often established by the inherently difficult-to-quantify nature of customer relationship damage), and that the balance of convenience favours the grant of the injunction. Gathering evidence of solicitation — through customer complaints, email interception (where lawfully carried out), or witness evidence — before applying for an injunction strengthens the employer's position significantly.

An Irish Non-Solicitation Agreement is needed when an employer wishes to protect its customer relationships and workforce from being targeted by a departing employee, without imposing the more severe restriction of a full non-compete clause.

You need a Non-Solicitation Agreement when you are: employing a sales, business development, or account management professional who develops personal relationships with the employer's key customers and whose departure to a competitor or new venture creates a genuine risk that those customers will follow; hiring an employee in a client-facing role in professional services — consulting, legal, accounting, financial services, or technology — where client loyalty is closely linked to the individual relationship rather than to the firm; engaging a senior manager or director who has relationships with both customers and other employees, creating a risk that they could destabilise the workforce or take key personnel when they leave; protecting customer relationships that took significant time, marketing investment, and personal effort to develop and that represent a substantial portion of the employer's revenue; or seeking a less restrictive alternative to a non-compete clause that still protects the employer's core business relationships and is more likely to be upheld by the Irish courts if challenged.

Non-solicitation clauses are appropriate for a wider range of employees than non-compete clauses, as they impose a less significant burden on the employee's ability to earn a livelihood. They should be considered for any employee who has direct, personal contact with the employer's customers, clients, or key suppliers, or who plays a significant role in maintaining the cohesion of the employer's workforce. For employees without significant customer-facing responsibilities, an NDA providing confidentiality protection may be sufficient, without the need for any solicitation restriction.

Many Irish employers include both a non-solicitation clause and a non-compete clause in the employment agreements for senior employees, with the understanding that the non-compete may face challenges for breadth or duration, while the non-solicitation clause serves as a more enforceable fallback that can be relied upon even if the broader non-compete restriction is reduced or struck down by the courts. This belt-and-braces approach — combining a well-drafted non-solicitation clause with a conservatively scoped non-compete and a thorough NDA — provides the best practical protection for the employer's legitimate business interests while reducing the risk of a court refusing to enforce any restriction at all.

Where an employee's departure is anticipated — for example, following the service of a notice of resignation — the employer should consider whether to place the employee on garden leave during the notice period. Garden leave reduces the employee's ongoing exposure to current customer relationships and commercially sensitive information, and effectively runs concurrently with part of the post-employment restriction period. A garden leave provision must be included in the employment contract to be valid, and the employer must continue to pay the full salary and contractual benefits during the garden leave period. The Law Society of Ireland and solicitors specialising in employment law regularly advise employers on the drafting and enforcement of non-solicitation clauses as part of a thorough post-employment restriction strategy.

Under the Employment Equality Acts 1998-2015, enforced by the Workplace Relations Commission (WRC), parties to this agreement retain rights under the Unfair Dismissals Acts 1977-2015 and the Organisation of Working Time Act 1997. Section 8 of the Unfair Dismissals Act 1977 grants the WRC adjudication officers jurisdiction to hear claims. The Data Protection Act 2018, implementing GDPR in Ireland, governs personal data processed under this agreement. Revenue Commissioners require PAYE/PRSI compliance for all employment arrangements.

A thorough Irish Non-Solicitation Agreement should contain several essential provisions to confirm enforceability and to clearly define the scope of the restriction.

The restricted persons clause should define precisely which customers, clients, suppliers, or employees are covered by the restriction. For customer solicitation, the restriction should be limited to persons with whom the employee had material personal dealings during a defined period before termination — typically the final twelve to twenty-four months of employment. For employee solicitation, the restriction should cover employees who worked closely with the departing employee or who reported to them. A blanket restriction covering all of the employer's customers or all employees of the employer is unlikely to be upheld by the Irish courts.

The restricted activities clause should clearly define what constitutes solicitation, distinguishing between active solicitation (approaching or targeting a customer, client, or employee) and passive acceptance of unsolicited business or contact. The clause should specify that the restriction applies to both direct solicitation by the employee personally and indirect solicitation through an agent, intermediary, or associated person acting at the employee's direction.

The duration clause should specify the period of the restriction. Six to twelve months is common for most employees, and is the range most likely to be upheld by the Irish courts. A duration of up to twenty-four months may be justifiable for very senior employees with deep customer relationships and significant seniority.

The legitimate interest clause should clearly identify the specific business interest being protected — customer connections, trade relationships, or workforce stability. The more precisely the employer can identify the nature and value of the legitimate interest, the more persuasive the case for enforcement will be.

The consideration clause should state the consideration for the restriction. For new employment agreements, the offer of employment is sufficient. For mid-employment agreements, additional consideration should be provided.

The garden leave clause should confirm whether the employer may place the employee on paid leave during the notice period, which reduces ongoing exposure to customer relationships and effectively serves part of the post-employment restriction period.

The severability clause should provide that if any part of the restriction is found to be unenforceable, the remaining parts continue in full force and effect to the maximum extent permitted by Irish law.

The governing law clause should confirm that Irish law applies and that the Irish courts have jurisdiction over any disputes arising under the agreement.

The remedies and enforcement clause should acknowledge that a breach of the non-solicitation restriction will likely cause irreparable harm to the employer's business relationships, that damages alone may not be an adequate remedy, and that the employer is therefore entitled to seek an interlocutory injunction from the Irish High Court to restrain ongoing or threatened solicitation activity, in addition to claiming damages and any other remedies available at law or in equity.

The confidential information cross-reference clause should draw a link between the non-solicitation restriction and the employee's NDA or confidentiality obligations, confirming that any solicitation activity that necessarily involves the use or disclosure of the employer's confidential customer information or contact lists will also constitute a breach of the employee's separate confidentiality obligations, giving rise to additional remedies under the European Union (Protection of Trade Secrets) Regulations 2018. The forms-legal.com Non-Solicitation Agreement (Ireland) template covers the mandatory elements under Employment Equality Acts 1998-2015.

Non-Solicitation Agreements in Ireland are interpreted under the restraint of trade doctrine by the High Court of Ireland. Section 8 of the Employment Equality Acts 1998-2015 applies to solicitation of employees. Section 5 of the Competition Act 2002 prohibits anti-competitive solicitation restrictions. Section 35 of the Competition Act 2002 provides for injunctions against breaches. Section 13 of the Organisation of Working Time Act 1997 applies during garden leave periods. Section 2 of the Minimum Notice and Terms of Employment Act 1973 governs notice during restrictive periods. Section 7 of the Data Protection Act 2018 and Article 6 of the General Data Protection Regulation govern client databases. Article 17 of the General Data Protection Regulation (right to erasure) applies to solicited client data. Section 127 of the Taxes Consolidation Act 1997 taxes payments for non-solicitation obligations. Section 228 of the Companies Act 2014 imposes director fiduciary duties. Section 43 of the Industrial Relations Act 1990 provides injunctive relief. The Workplace Relations Commission (WRC) adjudicates employment disputes under the Workplace Relations Act 2015. The Data Protection Commission (DPC) investigates breaches of the Data Protection Act 2018. The Competition and Consumer Protection Commission (CCPC) reviews anti-competitive solicitation bans. Revenue Commissioners assess restrictive covenant payments under the Taxes Consolidation Act 1997. The Circuit Court of Ireland grants urgent injunctions. The Court of Appeal reviews enforceability decisions.