SINGAPORE Law and Practice Contributed by: Kelvin Tan, Benjamin Gaw and Lim Chong Kin, Drew & Napier LLC
2. Restrictive Covenants 2.1 Non-Competes
• the employee has worked for the employer for at least three months; • the employee has a child that is below seven years old; and • the child is a Singapore citizen. The CDCA also provides that both male and female employees are entitled to two days of paid extended childcare leave within a period of 12 months, provided that: • the employee has worked for the employer for at least three months; • the employee has a child that is between seven However, an employee is not entitled to more than six days of childcare leave and extended childcare leave within a period of 12 months. If an employee is not entitled to childcare leave under the CDCA, an employee covered by the Employment Act is entitled to two days of paid childcare leave within a period of 12 months provided that: • the employee is covered under the Employment Act; • the employee has worked for the employer for at least three months; and • the employee has a child that is below seven years old. Unpaid Infant Care Leave Under the CDCA, employees are entitled to a maxi - mum of 12 days of unpaid childcare leave within a period of 12 months, regardless of the number of chil - dren, provided that: • the employee has worked for the employer for at least three months; • the employee has a child that is below two years old; and • the child is a Singapore citizen. and 12 years old (inclusive); and • the child is a Singapore citizen. An employee’s entitlement to unpaid infant care leave is in addition to the entitlement to paid childcare leave.
Post-termination restrictive covenants, such as non- compete and non-solicitation clauses, which impose restrictions on an employee after they have ceased working for their employer, are enforceable if they sat - isfy the following criteria. • The clause protects a legitimate proprietary inter - est, such as a trade secret, trade connection or a stable workforce. • The clause is reasonable between the parties con - cerned (ie, the employer and employee), including in terms of the scope of limitation, geographical area of limitation and the period of limitation. This may also include whether consideration was paid in return for the clause, or whether it was negoti - ated between the parties. • The clause is reasonable with reference to the public interest. The reasonableness of a restrictive covenant is assessed at the time the contract was made. The reasonableness of a restrictive covenant will also be assessed with reference to other restrictive cov - enants in the employment contract. For example, if an employment contract contains a confidentiality clause and a non-solicitation clause, a court may take the view that the employer’s legitimate proprietary interest regarding its trade secrets and trade connections is sufficiently protected, and that a non-compete obliga - tion on the employee is an unreasonable prohibition on competition, unless it can be shown that there is some other reason that necessitates the non-compete clause. This may be the case if it can be shown that the particular circumstances are such that it is much more difficult to enforce the non-solicitation clause or confidentiality clause compared to the non-compete clause. If a restrictive covenant is found to be too wide, the court may apply a “blue pencil” test to sever parts of the clause that are unjustified. This can only be done if no words need to be altered or added and the remaining words of the clause continue to make grammatical sense.
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