The Homecare Association has responded to the Department of Business and Trade's call for evidence relating to options for reform of non-compete clauses in employment contracts and how this may impact Adult Social Care.
The Association has said that non-compete clauses are not a significant barrier to growth or labour mobility in the homecare sector. The overwhelming constraints on workforce movement and business growth in homecare are chronic underfunding, workforce shortages, fragmented commissioning and regulation, and rising employment taxes - not contractual restrictions. Care workers are among the lowest paid in the economy, the sector already experiences very high staff turnover, and non-compete clauses for frontline care workers are already largely unenforceable under current common law given their low wages. Where these clauses have any practical effect at all, it is as a behavioural deterrent.
However, the reform proposals do engage with a concern that is highly relevant to our sector: the risk that care workers leave regulated employment to become self-employed, taking the people they support with them into unregulated arrangements. This raises serious questions about the quality and safety of care, continuity for adults at risk, and the sustainability of regulated providers who invest in training, supervision, and compliance with Care Quality Commission (CQC) standards.
We recognise that broad non-compete clauses - which prevent a care worker from working in care at all - are a disproportionate response to this risk, particularly for low-paid frontline staff where they are already unenforceable in practice. We do not resist their removal. The right tool for addressing client-poaching into self-employment is not an unenforceable non-compete but a Page 2 narrowly-drawn, time-limited non-solicitation clause, which specifically prevents a departing worker from approaching the people they have been supporting. This is targeted, proportionate, and far more likely to be upheld by a court.
We therefore support a combined approach of banning non-competes below a salary threshold and imposing a short statutory time limit above it, provided three conditions are met: first, that non-solicitation clauses are explicitly preserved and confirmed as available to employers in all sectors, including regulated care; second, that any reform is simple to understand and apply for small providers, accompanied by accessible guidance and model clauses; and third, that the government commits to strengthening the regulatory framework for the unregulated care workforce, so that removing the deterrent effect of non-competes does not accelerate the growth of unregulated care at the expense of quality and safety.
You can read our response here.
