High Court Case leads to Confusion?

In June of 2016 the High Court gave a decision that has many employment lawyers and employers scratching their heads.

Fox Whitfield was acting for two employees who were seeking a High Court declaration that restrictive covenants in their contract were not enforceable.

One of their arguments was that the contracts were given to them after they had been working for some time and at that time no pay rise or other benefits were provided to them. I t was generally accepted law that “Post-termination restrictions introduced after an employee has started work were generally thought to be enforceable only where the employee is given a tangible benefit (e.g. a pay rise) in return”.

However, in this case the High Court decided that was not necessary as simply continuing to employee the employees and introducing them to new clients was deemed to be enough.

There has been much comment on this case:

“The principles set out in Pro Cam are likely to be challenged (and the decision may yet be appealed).” I agree it will be challenged but this case is not going to be appealed. There are clear grounds to appeal but commercially it wasn’t deemed worthwhile.

No more nominal payments as consideration?



The full decision can be read here: http://www.bailii.org/ew/cases/EWHC/QB/2016/1304.html

What, if anything, this case shows is that it is very hard to accurately predict what restrictive covenants may be deemed to be enforceable by the High Court and which may not. This uncertainty is unhelpful for both employers and employees. These cases are hugely fact and detail sensitive and anyone thinking about introducing them to employees, or enforcing them to trying to escape from them should take proper legal advice as early in that process as they possibly can.

Paul Whitfield acted for James Pickwell and Molly Nichols in this case.

Paul Whitfield is the Principal Solicitor at Fox Whitfield.

Fox Whitfield can advise HR, employers and employees on disciplinary processes, procedures and unfair dismissal claims. We can also arrange meetings in the evenings or at weekends to work around your working hours.


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Employment Law Solicitors – Head Office in Manchester with offices located throughout the United Kingdom.