Home » Hold a former employee to their restraint and confidentiality

Hold a former employee to their restraint and confidentiality

We will move quickly to stop the breach, and tell you honestly what your clause is actually worth.

Restraint matters are decided by how fast you move. A business that acts in the first fortnight can usually get an injunction and preserve what is left. A business that waits three months has told a court the harm was tolerable, and has watched the clients move in the meantime. The first question is not whether the clause is enforceable. It is what is happening right now and how much of it can still be stopped.

Speak to a lawyer What is included

A straight answer on the clause

You are told quickly whether the restraint is likely to be enforced, before money is spent on it.

Speed where it counts

A demand goes out in days, because these matters are decided by how fast the business moves.

Orders that stop it now

Where the conduct continues, urgent relief holds the position while the matter is resolved.

What protects a business after an employee leaves?

Three things, and they do different work. A post-employment restraint limits what a former employee can do, for a defined period and area. Confidentiality obligations protect information regardless of any restraint, and continue after the employment ends. Separately, an employee owes duties during employment, including a duty of fidelity that is breached by preparing to compete while still employed.

Restraints are void as against public policy unless they go no further than is reasonably necessary to protect a legitimate interest. That usually means client connections, confidential information or the stability of the workforce. Courts do not rewrite an overreaching restraint. In New South Wales legislation allows a restraint to be read down, which is one reason the drafting and the jurisdiction both matter.

Speak to a lawyer

Are post-employment restraints actually enforceable?

Sometimes. A restraint is only enforceable so far as it protects a legitimate business interest and goes no further than reasonably necessary. Client connections, confidential information and workforce stability are legitimate. Stopping ordinary competition is not. The drafting and the seniority of the employee both matter a great deal.

How quickly do I need to act?

Days rather than weeks. Delay undermines any claim for urgent relief, because a court will ask why the harm was tolerable for months if it is unacceptable now. It also means the clients you are trying to protect have already moved.

What if there is no restraint clause?

You may still have remedies. Confidentiality obligations can exist independently of any restraint, both under the contract and in equity. An employee who took information, or solicited clients or staff while still employed, may have breached duties owed during the employment. That is so regardless of what happens afterwards.

What can a court actually order?

An injunction restraining the conduct for the balance of a reasonable restraint period. Orders for delivery up or destruction of confidential information. Damages or an account of profits. In practice the injunction matters most, because it stops the harm while the rest is worked out.

Every week you wait is a week the harm is treated as acceptable

Send us the contract and tell us what the former employee is doing. We will tell you today whether it is worth acting on and what acting would involve.

A restraint is worth what a court will enforce, not what it says

Somebody who left has taken clients, or staff, or information, and is doing the thing their contract said they would not. You have a clause. You do not know whether it is any good, what it would cost to enforce, or whether you have already waited too long.

Underneath that is the part that makes it hard to think clearly. This is usually somebody you trained and trusted, and the sense of betrayal is doing as much work as the commercial harm.

We will assess whether the restraint protects a legitimate interest and is likely to be enforceable.
We will identify what confidential information has been taken and what protects it.
We will prepare a letter of demand requiring undertakings.
We will apply for urgent orders where the conduct continues.
We will advise on preserving evidence and on approaching the new employer.

A former employee is doing the thing the clause was written to prevent

They left a few weeks ago, perhaps not on good terms. Now a client has mentioned they were approached, or two more have given notice. Or you have found out they are working for a competitor you did not know they were talking to. There is a restraint in the contract, probably twelve months, possibly longer. You want it stopped, and you also do not want to spend a fortune finding out the clause was unenforceable.

What's included in your restraint enforcement service

Speak to a lawyer

Restraint and confidentiality clause assessment.
Advice on the legitimate interest protected and the likely enforceability.
Evidence preservation advice.
Letter of demand and undertakings.
Correspondence with the new employer where appropriate.
Urgent injunction application and supporting affidavits.

What delay does to a restraint claim

The most common outcome in these matters is not a lost case. It is a case that was never brought, because by the time the employer decided to act the clients had already gone. The restraint period had most of it left to run on paper and none of it in practice. Delay is also an argument: a court asked for urgent relief wants to know why the urgency was not apparent for three months.

The other common failure is the drafting. Take a restraint of two years across an entire state, imposed on someone who dealt with a handful of accounts. It protects nothing legitimate and fails as a whole. Employers discover this at the point of trying to use it. And where confidential information has gone, every week it stays in circulation makes it less confidential and harder to protect.

How we move on it

The first conversation is an assessment, and it is quick. What the clause says, what interest it actually protects, what the former employee is doing, and what evidence exists. That tells you whether this is worth pursuing before any money is spent on it. Sometimes the honest answer is that the clause will not hold, and it is better to hear that immediately.

Where it is worth acting, we move. A letter that sets out the obligations and demands undertakings, drafted to be usable later rather than to vent. Where undertakings are refused or the harm is continuing, we apply for interlocutory relief to stop the conduct while the matter is resolved. In parallel we deal with the practical side. Preserving evidence, writing to the new employer where appropriate, and protecting the client relationships that can still be held.

How the breach gets stopped

Assessed today, demanded this week, and restrained if it does not stop.

Assess the clause

We tell you quickly whether the restraint protects a legitimate interest and is likely to be enforced.

Demand undertakings

We write to the former employee, and where appropriate the new employer, requiring the conduct to stop.

Apply to the court

Where the conduct continues, we seek urgent orders to restrain it while the matter is determined.

An honest read on the clause, and speed where it is worth using

There is a particular anger that comes from watching somebody do the exact thing they signed a contract promising not to do. It is almost always justified. It is also the thing most likely to produce an expensive decision. The commercial question is narrower than the moral one: what can still be saved, and what will it cost to save it.

We act on restraint and confidentiality matters for employers, and we will tell you early if the clause is too wide to be enforced. That is not a comfortable conversation, and it is a great deal cheaper than the alternative. Where the clause is sound and the conduct is live, these matters are usually won or lost in the first fortnight. We treat them accordingly.

Our great lawyer guarantee

Six principles we hold to, whatever you bring us and however long it takes.

Take the time

We listen carefully to understand what you want to achieve, then step you through the advice and the documents.

Share our knowledge

We pass on as much as we can, so you can make your own informed decisions.

Stick to our knitting

We only do what we are good at, so you never pay for our learning.

Work as one team

Someone is always available to answer your question or point you the right way.

Fair pricing

A fixed or capped quote for advice and documents, so you do not carry the price risk.

It is your show

We are in it for a front row seat to witness your success, not for our egos.

Find out today whether it can be stopped

Send us the employment contract and tell us what the former employee is doing. We will tell you whether the restraint is likely to hold, what can still be protected, and what the first step should be.

Speak to a lawyer 1300 654 590