A Restrictive Covenant Agreement is a legally binding contract under English law by which one party (the Covenantor) agrees to restrict certain commercial activities for a defined period after the termination of an employment, consultancy, or business relationship. The agreement typically includes some combination of four types of covenant: a non-competition covenant (preventing the Covenantor from working in the same industry or sector); a non-solicitation covenant (preventing the Covenantor from approaching the Covenantee's clients); a non-dealing covenant (preventing the Covenantor from dealing with specified clients even if they initiate contact); and a non-poaching covenant (preventing the Covenantor from recruiting the Covenantee's employees).

Restrictive covenants are governed by the English common law doctrine of restraint of trade, which presumes that a restriction on a person's freedom to trade is void unless it can be shown to be reasonable in the interests of the parties and the public. The key authority on severance of unenforceable covenants is the Supreme Court decision in Tillman v Egon Zehnder Ltd [2019] UKSC 32, which confirmed that courts can use the 'blue pencil test' to sever unenforceable words from a covenant and enforce the remainder, provided the remaining covenant is grammatically sound and does not fundamentally alter the character of the restriction.

A standalone Restrictive Covenant Agreement is used where the parties wish to document post-termination restrictions separately from the main employment contract, consultancy agreement, or business sale agreement. This is common where restrictions are introduced or updated mid-employment, where consideration is provided on termination in exchange for the covenants, or where the parties wish to ensure that each set of restrictions is clearly identified and separately enforceable.

A Restrictive Covenant Agreement is needed whenever a business wishes to protect its legitimate interests — confidential information, client relationships, supplier connections, or a stable workforce — against the risk that a departing employee, director, consultant, or business seller will use their inside knowledge to compete or recruit.

Common situations requiring a Restrictive Covenant Agreement include: the departure of a senior employee, sales manager, or director who has detailed knowledge of the business's clients, pricing, and strategy; the sale of a business, where the seller agrees not to compete with the buyer in the same geographical area for a defined period; the exit of a shareholder or partner, where the exiting party agrees not to solicit clients or employees; the commencement of a new engagement, where restrictions are agreed at the outset in exchange for employment, a role, or investment; and situations where existing contractual restrictions are out of date or have expired and need to be refreshed.

In an employment context, restrictive covenants entered into at the start of employment are more likely to be enforceable than covenants imposed mid-employment (which require additional consideration to be valid). In a business sale context, covenants protecting goodwill are given more latitude by courts because the seller is being paid for that goodwill and it would be unconscionable for them to immediately undermine it. In all contexts, a formal written agreement that clearly identifies the specific interests being protected and imposes restrictions that are proportionate in duration, scope, and geography will maximise the prospect of enforcement.

A well-drafted Restrictive Covenant Agreement under English law must contain several key provisions to maximise enforceability.

The parties and context section identifies the Covenantor and the Covenantee, describes the nature of their relationship (employment, consultancy, business sale, or shareholder exit), and specifies the legitimate business interests that the covenants are designed to protect. This background is important because English courts assess the reasonableness of a covenant in light of the specific context and interests identified.

The non-competition clause must be limited in three dimensions: the activities restricted (which should be defined by reference to the Covenantee's actual business, not every conceivable commercial activity); the duration (which should be no longer than is necessary to allow the Covenantee to stabilise its client relationships after the Covenantor's departure — typically 3-12 months in employment contexts); and the geographical area (which should reflect the actual area in which the Covenantee's business operates).

The non-solicitation and non-dealing clauses should identify the relevant clients by reference to those with whom the Covenantor had a material personal relationship during a defined lookback period (typically 12 months before termination). Limiting the restriction to clients the Covenantor actually dealt with is more likely to be upheld as reasonable than a blanket restriction on all of the Covenantee's clients.

The non-poaching clause should be limited to senior, key, or specialised employees rather than all staff, and should include a carve-out for general advertisements not specifically directed at the Covenantee's employees.

The garden leave interaction is critical: where garden leave is contractually provided for, any period of garden leave should be offset against the post-termination restriction periods to ensure that the overall period of restraint remains proportionate.

The consideration clause should record what the Covenantor receives in exchange for giving the covenants. A covenant with no consideration is unenforceable. In an employment context, the offer of employment (or continued employment) is consideration; on termination, a payment is typically required.

The severance clause should expressly invoke the blue pencil test from Tillman v Egon Zehnder Ltd [2019] UKSC 32, confirming that the covenants are intended to be severable and that courts are authorised to remove unenforceable words without voiding the entire agreement. The governing law clause should confirm that the agreement is subject to the laws of England and Wales, and the parties should submit to the exclusive jurisdiction of the courts of England and Wales.