Code of Conduct contained a general order concerning confidentiality
The two shop stewards were employed with a production company. It appeared from the company's Code of Conduct that the employees were not to state their opinion on behalf the company, unless specifically authorised. The rule read as follows:
"We wish to ensure that information to the public about our company is correct and consistent. Unless you are specifically authorised, you should never state your opinion on behalf of the company. If you are contacted by the media requesting information, copies of the company's documents or your opinion on a matter, you must refer the request to your superior or the local or division heads."
As Dagbladet Arbejderen and the trade magazine Pak og Papir wished to make a number of interviews with the two shop stewards, the company's CEO sent an e-mail to the shop stewards stating: "... I therefore order you to refrain from making any statements to the public on the company's matters in the future. Please note that any violation of this duty of loyalty and secrecy will be considered a severe matter."
The shop stewards objected to this general duty of loyalty and secrecy, but the company maintained the duty stating that it was simply a representation of the company's code of conduct.
The Industrial Court ruling
The parties agreed that the company's code of conduct was in accordance with section 4 of the principal agreement and therefore not contrary to the managerial right.
The court found that the duty of confidentiality imposed on the two shop stewards was quite generally worded and more far-reaching than the Code of Conduct.
On this basis, the court found that the company had misused the managerial right and the company was ordered to pay a penalty of DKK 50,000.
The ruling shows that employers must think hard when wording confidentiality rules vis-á-vis shop stewards and other staff. A company cannot impose absolute secrecy on its staff in relation to all company matters as this is an encroachment on the employees' freedom of speech which exceeds what the employer's general powers under the managerial right This does not only apply to areas covered by a collective agreement.
In special situations, it is, however, possible to impose confidentiality on shop stewards as regards information disclosed in the works council. Information expressly disclosed as confidential in cooperative bodies must not be passed on. Detailed reasons must, however, be provided as to why the information is confidential, its nature and duration.
The content of this Newsletter is not, and should not replace, legal advice.