Post-termination restrictions have always sat at a tension point in employment law. Employers want to protect legitimate business interests. Employees want the freedom to move, compete, and build careers without artificial constraints. Courts have spent decades trying to draw a line between the two, and in 2026, that line is more actively contested than it has been in years.
With the government’s non-compete reform consultation having closed in February 2026, the Employment Rights Act 2025 now bedding in, and the landscape around NDAs shifting following legislative changes to their scope, HR teams managing post-termination restrictions need a clear picture of where the law currently stands, what is genuinely enforceable, and how to future-proof contracts against the reforms that are coming even if nobody knows exactly when.
This guide covers all three clause types in practical detail.
Non-Compete Clauses: Still Enforceable, But Under Scrutiny
A non-compete clause prevents a former employee from working for a competitor or establishing a competing business for a defined period after leaving. In principle they are enforceable in the UK. In practice, courts apply a stringent test that many employer-drafted clauses fail.
For a non-compete to be enforceable, it must protect a legitimate business interest, go no further than is reasonably necessary to protect that interest, and be reasonable in its geographic scope, duration, and the activities it restricts. All four elements must be satisfied. A clause that is drafted too broadly fails the reasonableness test entirely, and courts will not rewrite an unenforceable clause into an enforceable one. They will simply decline to enforce it.
The most common drafting failures are clauses that are too long in duration, typically anything beyond twelve months for senior roles attracts scrutiny and anything beyond six months for most other roles is difficult to defend, clauses with unrealistic geographic restrictions that bear no relationship to where the business actually operates, and clauses that restrict activities the employee was never involved in during their employment.
The reform picture adds a further layer of uncertainty. The government’s working paper proposed options ranging from a statutory three-month cap on duration to an outright ban on non-competes for lower-paid workers. No legislation has passed and no implementation date has been set. But the direction of travel is clear, and HR teams that have not reviewed their non-compete clauses recently are carrying restrictions that may become legally void with relatively little notice.
According to David Greenhalgh, an expert employment law specialist from London, the smart approach for employers right now is to audit existing non-compete clauses against the current enforceability test while simultaneously future-proofing contracts by strengthening garden leave provisions, non-solicitation clauses, and confidentiality obligations. These protections are outside the current scope of the reform proposals and provide meaningful coverage regardless of what happens to non-competes legislatively.
Garden Leave: The Practical Alternative Worth Taking Seriously
Garden leave deserves attention alongside non-competes because it serves a similar protective function through an entirely different mechanism and carries none of the enforceability risk.
A garden leave clause allows an employer to keep an employee on full pay during their notice period while requiring them to stay away from the office, clients, and colleagues. Because the employee remains employed and paid throughout the period, garden leave is consistently more defensible than a post-termination restriction that asks someone to sacrifice income for the employer’s benefit.
For senior roles where the business interest to protect is significant, a combination of a well-drafted garden leave clause covering the notice period and a narrowly tailored non-compete covering the period immediately after provides layered protection that is considerably more robust than a long non-compete clause alone.
The practical implication for HR teams is to check whether notice periods are long enough to provide meaningful garden leave cover, whether contracts include an express garden leave clause giving the employer the right to invoke it, and whether the business has a clear process for actually enforcing garden leave when a senior employee resigns to join a competitor.
NDAs: Significant Scope Changes Now in Force
Non-disclosure agreements have undergone meaningful legislative change that came into force as part of the broader employment law reforms of the past two years and HR teams need to be aware of the current boundaries.
NDAs and confidentiality clauses in settlement agreements can no longer prevent a signatory from making disclosures to the police, regulated professionals, or legal advisers. They cannot prevent disclosure of information relevant to a criminal offence. And in the context of workplace harassment and discrimination, the scope of what an NDA can restrict has been significantly narrowed.
The practical consequence for employers is that NDAs in settlement agreements need to be reviewed to ensure they do not include provisions that are now void by operation of statute. A clause that purports to prevent a former employee from speaking to their GP, their solicitor, or the police about matters covered by the agreement is unenforceable and its inclusion raises questions about the validity of the broader agreement.
For routine commercial confidentiality, NDAs remain entirely valid. Protecting genuinely confidential business information, trade secrets, client data, and intellectual property through a properly drafted confidentiality clause is lawful and enforceable. The changes target the misuse of NDAs to silence victims of wrongdoing, not legitimate commercial confidentiality.
Non-Solicitation Clauses: The Most Robust Protection Available
While non-competes face an uncertain legislative future, non-solicitation clauses remain outside the current scope of the reform proposals and continue to represent the most reliably enforceable post-termination restriction available to employers.
A non-solicitation clause prevents a former employee from approaching clients, customers, or colleagues they dealt with during their employment for a defined period after leaving. Because the restriction is narrowly targeted at specific relationships rather than broadly prohibiting competition, courts apply a less stringent reasonableness test and these clauses are significantly more likely to be upheld.
Effective non-solicitation drafting covers three distinct groups: clients the employee personally dealt with during a defined period before leaving, potential clients the employee was actively engaged with at the point of departure, and colleagues the employee managed or worked closely with where a team move is a realistic concern.
Duration for non-solicitation clauses is typically defensible up to twelve months for senior roles with significant client relationships, with six months being the more common benchmark for other roles. Beyond twelve months, enforceability becomes increasingly difficult to justify regardless of the seniority of the role.
What HR Teams Should Do Right Now
The combination of impending non-compete reform, tightened NDA scope, and the ongoing enforceability test applied to all post-termination restrictions creates a clear action list for HR teams in 2026.
Audit existing contracts for senior and client-facing employees to identify non-compete clauses that would fail the current enforceability test. These should be renegotiated where possible, ideally in exchange for a benefit such as a pay increase or enhanced notice period, to ensure the replacement restriction is supported by fresh consideration.
Review settlement agreements to ensure confidentiality clauses comply with the current statutory limitations on NDA scope. Any clause that purports to prevent disclosures that statute now protects is void and its presence creates unnecessary legal risk.
Strengthen non-solicitation and garden leave provisions as the primary protective mechanism while the future of non-competes remains unsettled. These protections are more immediately enforceable and more resilient to the legislative changes that are on the horizon.
Keep employment contracts under regular review rather than treating them as set-and-forget documents. The pace of change in UK employment law over the past two years has been faster than at any point in recent memory, and contracts drafted even three years ago may contain provisions that are now unenforceable, inadequate, or legally problematic.
This article is for informational purposes and does not constitute legal advice. Employers should seek specialist employment legal advice for guidance specific to their circumstances.
The post Non-Competes, NDAs, and Non-Solicitation Clauses: What UK Employers Can and Cannot Enforce in 2026 first appeared on HR News.