Non-Compete Clauses in Contracts of Employment: Contractually Beneficial or a Challenge to Public Policy?

The regulation of the relationship between an employer and an employee derives from statute and the contract of employment. The express or implied terms of a contract of employment determine its duration. It is an ineluctable reality that employees would always leave their employers in the search for a greener pasture- either to set up their enterprise or work in a much better organization.

This is one reality that sometimes leaves employers anxious; especially bearing in mind the rigours of a new recruitment process to fill the vacuum left by a former employee’s exit and having to integrate the new employees into the existing structure of the organization, or even in some cases, review their employment terms to make them alluring for prospective employees.

Stretching their fears, many an employer also believe that there is the risk that, upon leaving their employ, a former employee might delve into the same business activities as theirs or get employed by their competitors, and there lie some worries that the former employee might even woo away their workers or clients from them; or that the former employee might exploit their organization’s trade secrets, business strategies, marketing plans or confidential information gained while in their employment for their own business’ advantage or that of their new employers.

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