Reviewed by: Graham Clayton
Author: edited by Paul Goulding QC
Publisher: Oxford University Press
ISBN: 978-0-19-958769-8
Price: £125.00

When you find yourself actually reading, rather than skimming, a 600 page textbook covering an area of specialised practice to write a review, you are either in urgent need of a lifestyle counsellor, or the authors have made a good job of making a potentially very dull subject interesting.

Though Employee Competition: Covenants, Confidentiality, and Garden Leave is no book for bedtime reading – it is a densely fact filled examination of case and statute law - I found myself quite caught up in many of its themes.

Since I do still seem able to engage with some friends in light-hearted conversation without the aid of a counsellor, I think I can fairly praise this book’s 22 contributor authors for a well written and interesting work.

The team of authors, led by editor Paul Goulding QC, combines the skills of the specialist advocates at Blackstone Chambers with the very practical awareness of solicitors at Olswangs.

It’s not an entirely seamless combination, but once the reader gets used to the occasionally surprising leap from in depth analysis to practical checklists, the overall effect is positive and helpful.

It is perhaps a problem with the subject matter of the book that it is not easily recognisable as being part of day to day reality.

The theoretical notion of the evolution of English law is that the courts do not create it, they merely discover and reveal it in order to apply it to previously unknown situations.

Only the elected have the authority of the governed to make law. New judge-made law is shaped to fit into old boxes and at times, particularly in employment law, the fitting is very ill indeed.

The concept of masters and servants has happily given way to the language of ‘employer ‘and ‘ employee‘ but the legal ancestry of what we now know as ‘employee competition’ is still influential.

Though we have long abandoned the idea that the ‘master’ purchases, for a wage, a quasi-proprietorial right in the servant, we remain with a body of law which assumes the employer’s proprietorial rights in many of the outcomes of the employee’s labour.

This is an assumption which is central to much of the subject matter of Employee Competition, but one which could well be considered quaintly absurd by individually liberated members of today’s workforce (and their unions) who prefer to consider themselves owners of the knowledge, skills and some of the products of their own labour.

The book tackles expertly a subject in which there are many inherent contradictions. It explains comprehensively the duties, whether fiduciary or perhaps not quite fiduciary, of employees to be loyal to their employers, to act in their employer’s best interests, and to keep their employer’s secrets.

But what duty is then owed to a new employer, a competitor to the first, who demands to be given information which its recent new recruit is forbidden by law from revealing?

‘Employee competition’ is not by any means the most enlightening of descriptor phrases and ‘garden leave’ serves enlightenment no better.

Nor does the title comprehensively describe the content of the work since much of the second half of the book looks at commercial covenants and their consequences aside from the employment relationship.

It is healthier for the book that it is aimed primarily at specialist barristers and solicitors who are already familiar with the terminology.

Its secondary target readership is academics and students, though it seems unlikely to leap from the bookshelves into the hands of any but the most earnest undergraduate.

The publishers hope too that it may be of interest to employment practitioners in foreign jurisdictions where similar legal principles apply.

All of them, if they get past its title, will benefit from having it on their bookshelves.

Advocates and practitioners will find it an essential guide when a potential claimant or defendant seeks advice or when a client needs some document drafting with the aim of avoiding later litigation.

This book tackles expertly a subject in which there are many inherent contradictions.

These same contradictions rather suggest to me that there could be another readership.

Finding this law discussed all in one place, I am struck by how outdated many of its underlying notions and ideas appear.

Laws made in Parliament dating back to the mid 1960s, and latterly EU law seeking to secure a Europe-wide broad equivalence of labour market costs, have been founded on a concept of ‘employment rights’, in effect charter rights for the employee.

They sit uneasily with the retention in common law and equity of notions of employer ownership of the outcomes of labour and of the knowledge and skill necessary to deliver those outcomes.

Take, for example. the relatively recent emergence of ‘garden leave’, the right of an employer to protect its interests and its secrets by forcing an employee, who is eager to work , to sit contemplating his or her geraniums.

You really can’t help wondering whether this curious idea amounts to a rather desperate effort to reconcile the increasingly irreconcilable.

Employment rights law will surely prevail, but its development into law which recognises rights of ownership by the individual in the skills and knowledge applied in his or her own labour will be seriously problematic if it does not take place in tandem with a well studied reform of employee competition law.

The study and practice of employment rights law is widespread. The study and practice of employee competition law remains specialist.

Employee Competition: Covenants, Confidentiality, and Garden Leave needs to be read and understood by all employment lawyers and those interested in the further evolution of the laws governing relationships at work.

Graham Clayton is an education and employment law consultant, and is the former senior solicitor at the National Union of Teachers

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