UK restrictive covenant enforceability is tightening 2023-2026

UK courts have grown notably stricter on restrictive covenant enforcement since 2023. Covenants that would have been enforced ten years ago are increasingly being struck down or limited at injunction stage.

The trend has three observable drivers:

Tillman applied more cautiously than employers expected. The 2019 Supreme Court decision was initially read as employer-friendly, allowing severance to save over-broad drafting. Lower courts in 2023-2026 have applied the severance test stringently: the unenforceable wording must be cleanly removable; the remaining covenant must be supported by adequate consideration; the character of the covenant must not change. Where any of the three conditions is doubtful, courts are increasingly refusing to apply severance, with the consequence that the entire covenant fails.

Judicial concern about over-broad drafting. Courts have explicitly criticised employer drafting practice that relies on severance to save deliberate over-reach. The judicial position appears to be: drafters should write what is enforceable rather than testing the limits of what severance can save.

Employee-side legal sophistication. Employee-side employment law firms are increasingly running covenant-challenge cases at the boundary, producing case-law that establishes narrower enforceability than was previously assumed.

The implication for UK sales contracts in 2026: covenants drafted before 2023 should be audited against the current standard. Employers relying on covenants that would have held up in 2018 may find them unenforceable in 2026 disputes. Employees facing covenant challenge are increasingly likely to succeed at the boundary cases that would have lost a decade ago.

The trend is unlikely to reverse on a 1-3 year horizon. Drafters should write tightly to legitimate proprietary interests and not assume severance will save aspirational drafting.