Tillman v Egon Zehnder Ltd

Ms Tillman joined executive-search firm Egon Zehnder as a consultant and rose to a senior global position. Her employment ended in January 2017. She intended to start work for a competitor and said she would comply with the other restraints, but not the six-month non-compete.

The clause prevented her from being directly or indirectly engaged, concerned or interested in a competing business. The dispute focused on the breadth of 'interested in', which naturally included holding even a small number of shares.

The Supreme Court agreed that the shareholding restriction was unreasonable. It then considered whether the words causing the problem could be removed.

The Court used a three-part approach. The words had to be removable without adding to or changing the remaining text. The remaining promise still needed consideration, which is rarely controversial in an employment contract. Most importantly, removal could not produce a major change in the overall effect of the post-employment restraints.

Tillman did not lower the general restraint-of-trade test. The employer still needs a legitimate interest, such as confidential information or customer connections, and a restriction no wider than reasonably necessary to protect it.

A court will look at the position when the contract was made. Copying a senior executive restraint into a junior employee's contract can therefore fail even if the employee later becomes important.