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Emily works for a technology firm and her employment contract contains a clause specifying that she "will not work in the same industry for a period of ten years after termination of the contract, within a five-mile radius." However, the nearest location in which Emily could realistically find new employment within the same field outside of the local area would be over 200 miles away. 


Which of the following is the court likely to find in respect of the clause, or the contract?

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The clause is void and cannot be changed by the court. A restraint of trade clause imposes restrictions or limitations on the freedom to conduct business between a buyer and a seller of a business or between an employer and employee. Generally, such clauses are prima facie void and will be unenforceable unless they protect a legitimate interest and are reasonable in terms of geography and duration. In this case, the restriction of not working in the same industry for ten years within a five-mile radius is likely excessive, given the nearest employment opportunity outside of this area is over 200 miles away. The common law is reluctant to impose restrictions on a person's ability to earn a living (see Faccenda Chicken Ltd v Fowler [1987] Ch 117, CA). The court does have the power to sever parts of contracts and leave in place those it considers reasonable, but this is only possible if the restriction to be severed is independent of all other provisions as drafted (Sadler v Imperial Life Assurance Co of Canada Ltd [1988] I.R.L.R. 388). This would not be possible in this case as removing the ten-year period would leave the five-mile radius provision incomplete. The court cannot uphold a restrictive covenant by imposing a new restraint on the parties (JA Mont (UK) Ltd v Mills [1993] I.R.L.R. 172). 


Key Point: Restrictive covenants must be reasonable in scope and duration to be enforceable. Courts cannot rewrite unreasonable restrictions but can sever independent provisions if possible.

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