Reviewing a non-solicitation clause

A non-solicitation clause stops one party approaching the other's staff, customers or suppliers, during the contract and for a period after it, and it appears in services, consultancy, outsourcing, recruitment and joint venture agreements to protect the relationships each party brings. It is enforceable only if it protects a legitimate interest and goes no further than reasonable, and between businesses an agreement not to hire each other's staff can raise competition law issues of its own. I review the clause from whichever side instructs me and return it marked up with a written explanation of what it prohibits, whether it is enforceable as drafted, and the changes the other side will accept, for a fixed fee of £495 in three working days.

Who this is for

Businesses in England and Wales asked to accept, or wanting to impose, a restriction on soliciting staff, customers or suppliers in a services, consultancy, outsourcing, agency, recruitment, joint venture or supply agreement. Both parties are businesses; non-solicitation covenants in employment contracts are reviewed under the employment service.

What to look for in a non-solicitation clause

Who is protected and what counts as soliciting

The clause should define the people protected: employees of a certain seniority or involvement in the contract, customers the restricted party dealt with under the contract, and suppliers introduced through it, rather than every employee, customer and supplier the other party has. It should define soliciting as approaching or inducing, and say whether responding to an unsolicited approach or a general advertisement is caught. The review narrows the classes to those the other party has a legitimate interest in and carves out general advertising and approaches the individual initiates.

Non-solicitation, non-dealing and non-employment

A non-solicitation clause stops approaching; a non-dealing clause stops doing business with the customer or supplier even if they approach; a non-employment clause stops hiring the individual however the contact arose. The review identifies which the clause is, since a non-dealing or non-employment restriction goes further and is harder to justify, and drafts to the interest at stake: non-solicitation of customers, non-employment of key staff for a short period, and nothing wider unless the other party can show why.

Duration and enforceability under the restraint of trade doctrine

A post-termination restriction is enforceable only if it protects a legitimate interest and is no wider than reasonably necessary, and the court will not rewrite an unreasonable restriction, though under Tillman v Egon Zehnder Ltd [2019] UKSC 32 it may sever words that go too far where what remains makes sense and the character of the restriction is unchanged. The review assesses the period against the interest, the length of the relationship and the time the other party needs to protect its connections, and separates the restrictions into distinct obligations so that an unenforceable one can be severed.

No-poach agreements between businesses and competition law

An agreement between businesses not to hire or solicit each other's employees is an agreement that may restrict competition in the labour market within section 2 of the Competition Act 1998, and the Competition and Markets Authority has said that no-poach and wage-fixing agreements between employers can be unlawful. A non-solicitation clause that is ancillary to a legitimate commercial agreement, limited to the staff involved in it and to a reasonable period, is in a different position from a bare agreement between competitors not to hire each other's people. The review checks which side of that line the clause falls and drafts it to be ancillary and proportionate.

Recruitment agencies and the transfer fee alternative

Where the restriction protects a recruitment agency or an employment business against a client hiring its temporary workers, the statutory framework applies: regulation 10 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 limits the transfer fee the agency may charge and requires it to offer an extended hire period as an alternative, so a non-employment clause cannot go further than the regulation allows. The review checks the clause against the regulation and drafts the transfer fee provision instead.

The liquidated sum, the remedy and the drafting that works

Clauses attach a sum payable for each employee or customer taken, and the review checks it against the rule in Cavendish Square Holding BV v Makdessi [2015] UKSC 67: a sum that reflects the cost of replacing the employee or the lost margin on the customer protects a legitimate interest, while a round sum unrelated to either is a penalty. For a party imposing the clause, the review drafts distinct restrictions with a defined class, a defined period and a sum tied to recruitment cost; for a party accepting it, it narrows the classes, shortens the period, carves out general advertising and unsolicited approaches, and makes the restriction mutual. Interest on a liquidated sum that becomes a debt runs under the Late Payment of Commercial Debts (Interest) Act 1998.

What it costs

Standard review, £495. Marked-up document and a written explanation of the changes. Three working days.

Buying online forms the engagement on payment. The scope is what the contract review page describes, you accept the Terms of Service at checkout, and I email you within four working hours to get started. If you would rather ask something first, email me.

What you get

• Your own contract returned with my amendments as tracked changes, plus a clean version with every change accepted, ready to send to the other side
• Comments in the document where a point needs explaining
• A written explanation of what I have changed and why, by email or as an attachment if it is lengthy, marking the points I would hold firm on and the ones that are negotiable
• A view on what is normal market practice and what is the other side pushing their luck
• One round of follow-up questions by email, included

What is not included

• Negotiating directly with the other side, which I quote separately once I know who is on the other side. Where the other side is willing to share a live document, I can work in that document directly
• Drafting a replacement contract from scratch
• Advice on the law of any jurisdiction other than England and Wales
• Tax, accounting or regulatory advice
• Disputes about a contract that is already signed

Questions I am often asked

One of the supplier's consultants applied for a job with us through our website. Does the clause stop us hiring them?

Only if it is a non-employment clause rather than a non-solicitation clause, since you did not solicit. The review reads the clause, identifies which it is, and, where you are drafting, carves out unsolicited approaches and responses to general advertising.

Can two companies agree not to hire each other's staff?

A bare agreement between businesses not to hire each other's employees can breach the Competition Act 1998, and the Competition and Markets Authority has said so. A restriction ancillary to a genuine commercial agreement, limited to the staff involved and to a reasonable period, is different. The review drafts the ancillary version.

The clause says we pay a fixed sum for every employee we take. Is that enforceable?

Only if the sum reflects a legitimate interest, such as the cost of recruiting a replacement; a round figure unrelated to that is a penalty. The review checks the sum against the rule in Cavendish Square Holding BV v Makdessi and redrafts it to a figure tied to recruitment cost.

Related guidance and services

• Contract review, £495, the service this page describes
• Consultancy and contractor agreements, £595
• Employment contracts and handbooks, £595
• Reviewing an exclusivity or non-compete clause
• Reviewing recruitment agency terms of business before you hire

This page is general guidance for businesses in England and Wales, not advice on your own circumstances. Last reviewed: September 2026. Email geoffrey@caesar.co.uk.