EMPLOYMENT LAW

To establish that a non-competition clause in an employment contract was reasonably necessary for the protection of the employer’s interest in confidential information, the employer must first establish that, at the time of the contract, the nature of the proposed employment was such as would expose the employee to information of the kind capable of protection beyond the end of the contract, ie trade secrets or other information of equivalent confidentiality.

If the employer overcomes that hurdle, it is no argument against a restrictive covenant that it may be difficult for either the employer or the employee to know where exactly the line may lie between information which remains confidential after the end of the employment and information which does not.

The fact that the distinction can be hard to draw may support the reasonableness of a non-competition clause, since it is because there may be serious difficulties in identifying precisely what is or what is not confidential information that a non-competition clause