The scene

A DDU member was working as an associate for an NHS practice that was part of a corporate, and their associate contract included a restrictive covenant that prohibited them from taking a new job within three miles of the existing practice.

Their new role would be within that radius, and since this would therefore breach the restrictive covenant clause of their contract, the member was unsure what they should do.

DDU advice

Speaking with the DDU's dento-legal adviser, the member was advised that they should assume the restrictive covenant clause in their contract was enforceable, and that the corporate would be within their rights to sue for damages if the clause was breached.

However, such a claim wasn't inevitable if the restrictive covenant was breached, and the adviser suggested that it might be possible for the member to assess the potential risk of this happening by finding out what the corporate's response had been to other practitioners who had previously left the corporate in similar circumstances, and how rigorously any such clauses had been enforced before.

Practically speaking, the enforceability of these clauses often varies with the individual circumstances and how restrictive they are. By and large, the greater the duration of the restrictive covenant, and the greater the exclusion distance from the original practice, the less enforceable the clause is likely to be.

Ignoring the enforceability of the restrictive covenant, it might be possible to negotiate a mutually acceptable written agreement with the corporate to release the member from the restrictive covenant. This would be in exchange for the associate agreeing not to accept for treatment any patients previously treated at the corporate, so protecting the goodwill of the corporate practice.

Nevertheless, it would be important to proceed with caution. The adviser pointed out that there was no guarantee or obligation on the part of the corporate to make such concessions, and if the member was sued for breaching a contract they had signed and by which they were legally bound, dealing with the claim and paying any damages awarded would fall to the associate personally.

Associate contract checking and advice

To help members appreciate the practical ramifications of such clauses in an associate contract, the DDU offers a contract checking service to review your contract and provide you with our expert advice. Click the banner below for more information.