Fair Game? Assessing the Enforceability of Contractual Non Poaching Covenants

摘要

A pivotal factor in the success of a commercial enterprise lies in the quality of its staff. Employees form the lifeblood of any business and the social dynamics of staff including their skills, personality, expertise and training are all factors that may contribute to a firm's profitability. Employers may invest considerable time and expense in training and integrating their staff. They may also expose them to jealously guarded customers or confidential information that provide the employer with their competitive edge in the marketplace. The loss of a member of staff may therefore pose considerable risks to an employer. At the very least an employer will suffer the expense and inconvenience of having to recruit and replace the individual. At worst the employer may be faced with a potential future rival who seeks to capitalise upon his exposure to the employer's methods, confidential information and client base. Such an individual may replicate the employer's product, solicit the employer's client base, or seek to entice former colleagues to join him in the new venture potentially compromising the employer's position in the marketplace.