WHAT IS NON-SOLICITATION?

By non-solicitation in an agreement of employment, it is meant that the employee agrees not to solicit the client of the companies or customers for his or her own benefit or for the benefit of the competitor of the company, after termination of his employment with the company. Such clauses are for a pre-defined specific period which could be a separate agreement or a clause in the employment agreement of the employee.

VALIDITY: The non-solicit clause comes into force only on the termination of the employment of the employee with the current employer. It is considered as a “restraint of trade” clause which even the Hon’ble Supreme Court has been reluctant to enforce since the same is barred as per the principles of contract laid down in the Indian Contract Act and is directly against the fundamental right provided to every person i.e. right to livelihood

ENFORCEABILITY: The Courts have been very strict in enforcing the restrictive covenants post-employment on any employee. It has been held time and again that negative covenants between employer and employee contracts pertaining to putting restrictions on employee’s right to seek employment in the same field, would be in restraint of trade.

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