An employer may sanction staff representatives for acts committed in the performance of their mandates. In a judgement of 15 June 2022, the French Court of Cassation ruled that a member of a European staff representative committee (ESRC) had not respected his secrecy obligation and could therefore be sanctioned for that reason (1). This judgement confirmed that the employer bears the burden of proof of the confidential nature of information and that such confidential nature is assessed in light of “the company’s legitimate interests“.
An obligation of discretion which binds staff representatives and those who assist them
In consideration of their knowledge of matters relative to the general running of company business, members of the Economic and Social Committee (ESC), members of the works council “Conseil d’entreprise”, and union representatives on such committees are bound by a special secrecy obligation. Given the risk of divulgation to third parties of information regarding the company, the law provides for a secrecy obligation in respect of information “of a confidential nature and communicated as such by the employer (2)“. The secrecy obligation is also applied to information of a confidential nature contained in the economic, social, and environmental database (ESEDB) (3).
Article 12 of the National Inter-professional Agreement (NIA) of 11 January 2013 from which derive the ESEDB and the secrecy obligation as regards the confidential information recorded therein, stipulates that “Work on anticipating and informing on the company’s evolution presupposes the sharing of information and entails the responsibility of each party as regards its dissemination, with a view to maintaining constructive dialogue in a climate of confidence. Such sharing of information must therefore be accompanied by a certain number of appropriate safeguards, in particular in respect of the confidential nature of the information provided and duly identified as confidential. Hence, when the employer considers that the information he has to provide is sensitive and must remain confidential, he must indicate the reasons for its confidential nature and the desirable duration of confidentiality to the representatives who are obliged to respect such requirements“.
In line with the NIA, the French Labour Code stipulates that “the members of the staff delegation on the economic and social committee and the central company social and economic committee, along with the union representatives are bound by a secrecy obligation in respect of the information recorded in the database that is confidential and presented as such by the employer (4).”
Furthermore, the information provided to the ESC or works council within the framework of an economic alert procedure (5) is considered confidential “by nature“. The ESC or works council representative on the board of directors is also bound by the secrecy obligation (6).
ESC experts are bound by secrecy obligations (7). Sometimes, certain companies require that the auditors sign a confidentiality agreement, to avoid the communication of certain information to the ESC. Although nothing obliges the auditors to sign such a confidentiality agreement, once the auditor has signed it, it is binding for both parties (8).
Hence, two conditions are set by the lawmaker for the employer to be able to sanction a breach of the secrecy obligation by a staff representative:
– The specific declaration by the employer of the confidential nature of the information provided;
– The objectively confidential nature of the information provided by the employer.
In a judgement of 5 November 2014, the French Court of Cassation had already ruled that “the information given to a member of the works committee must not only be declared confidential by the employer but must actually be confidential in respect of the company’s legitimate interests, which the employer must establish (9)“. Recently, in June 2022, the French Court of Cassation confirmed that the employer bears the burden of proof of the confidential nature of the information and that such confidential nature is assessed in light of “the company’s legitimate interests (10)“.
The French Court of Cassation also validated the dismissal of a staff representative who had divulged to the press a distorted version of information specifically presented by the employer as confidential (11). Staff representatives must therefore obey secrecy obligations not only within the company but also outside of it.
Court assessment of “company’s legitimate interests“
An employee working in a bank held a mandate as a staff representative on the European Staff Representative Committee (ESRC). Following a breach of IT security and confidentiality regulations in respect of the information provided for an ESRC meeting, she was given a warning. She took proceedings for an unjustified sanction and trade union discrimination before the employee claims court. She considered that she had not committed any breach in the exercise of her representative mandate, nor had she failed in her secrecy obligation, as no confidential information had been divulged to a non-authorised third party.
The trial judges validated the warning given to the employee on the grounds that she had not respected her legal secrecy obligation, besides having breached the IT security and confidentiality regulations.
Information of a confidential nature in respect of the company’s legitimate interests and presented as confidential by the employer.
The judges pointed out that the document in question contained information about the internal management of the company as well as its expansion plans; information that was confidential by nature and in content. Case law already rules that any information whose dissemination may undermine the company’s interests such as forecasts of sales figures for the coming years in France and abroad is intrinsically confidential (12).
Furthermore, the judges noted that the employer had mentioned the confidential nature of the information during a previous ESRC meeting.
Hence, a secrecy obligation is not automatic. If the information provided to the ESC by the employer does not have the confidential nature mentioned above, the employer cannot force the representatives not to communicate about it in meeting minutes or any other form of exchange. The information must be declared confidential before or at the time of its transmission. The employer may use any means he wishes to prove that he had specified the confidentiality of information released.
In a dispute where the minutes of the ESC meeting did not mention that the information was deemed confidential, the French Court of Cassation judged that the staff representative’s sanction was unjustified (13).
The employer must therefore exercise caution and mention the confidentiality of the information in the documents provided to the ESC when such information must remain confidential in order to protect the company’s legitimate interests.
(1) Cass. Soc. 15 june 2022, n°21.10366.
(2) Articles L.2315-3 and L.2321-1 of the French labour code.
(3) The ESEDB is obligatory in companies employing at least 50 people.
(4) Article L.2312-36 of the French labour code.
(5) Article L. 2312-67 of the French labour code.
(6) Article L. 225-37 of the French commercial code.
(7) Article L. 2315-84 of the French labour code.
(8) CA Versailles, ch. 14, 3 february 2022, n° 21.03382.
(9) Cass. Soc. 5 november 2014, n°13-17.270.
(10) Cass. Soc. 15 june 2022, n°21.10366.
(11) Cass. Soc. 6 march 2012, n° 10-24367.
(12) TGI Lyon, 11 december 1984.
(13) Cass. Soc. 12 july 2006, n° 04-47558.