Restrictive Covenants - Remedies for breach and enforcing a restrictive covenant

Key Points

  • This fact card deals with the remedies for an employer if their former employee is acting in breach of a restrictive covenant. 
  • Prior to considering the available remedies, it is advisable of course for the employer to determine the likelihood of the restrictive covenant being deemed by a court to be enforceable, as evidently breach of a void and unenforceable covenant will have no remedy (the issue of whether or not a covenant is enforceable is dealt with at Related card Restrictive Covenants: Is the Covenant Enforceable?)
  • Recourse for breach of a restrictive covenant is obtained exclusively in the civil and the available remedies are the common law remedies of
  • An injunction
  • Ordinary damages for breach of contract
  • The equitable remedy of an ‘account of profits
  • Damages, also in limited circumstances, for the hypothetical price the employee would have had to pay to buy out the restriction
  • Damages against the new employer in tort for procuring a breach of contract.
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