In Hernandez v Vodafone Ireland Limited [2013] 24 ELR 194, the employment contract provided a restriction preventing the employee from working for any business or commercial activity in Ireland which competed with the Defendant’s business for six months following the termination of his employment. The employee was offered employment with a competitor (O2). In a somewhat unusual arrangement, Vodafone and O2 agreed that the Plaintiff could be released from his contractual obligations earlier than as provided by six month contract but only on condition that the Plaintiff could not take up employment for three months. 

The Plaintiff initiated interlocutory proceedings seeking to restrain Vodafone from preventing him from commencing his new employment without delay. This was on the basis that he would be without his income for in excess of three months if Vodafone was permitted to enforce its agreement with O2. In deciding to grant an injunction in favour of the employee restraining the Defendant from preventing the Plaintiff from starting work with O2, pending trial, the Court showed its willingness to deem void and unenforceable any arrangement between competitors to unlawfully restrict an employee’s right to earn a living in certain circumstances. 

These decisions are indicative of the Courts’ testy attitude towards non-compete clauses. Clearly, the Courts are more willing to enforce confidentiality clauses and/or non solicitation clauses than they are to enforce restraint of trade clauses. That said, a carefully drafted restraint of trade clause, that is specific to an organisation’s needs is better placed to achieve a successful outcome in Court.