Employees in the assistance area play a key role in every company. They are often deeply involved in the processes, have access to sensitive information and necessarily gain knowledge of such. Confidentiality is not only a matter of professionalism, but is also legally standardized. But what duties are there and how can they influence the work?
According to Art. 321a para. 4 OR, employees must not exploit or disclose to others any facts to be kept secret, such as manufacturing and trade secrets, of which they become aware while in the service of the employer, during the employment relationship. Manufacturing secrets concern the technical area, for example, a specific production process or research results. Trade secrets include topics in the commercial-organizational area such as customer lists, marketing or human resources. The legal provision protects the legitimate interests of the employer by prohibiting the disclosure of this confidential information to third parties. These include, in particular, competitors, but also friends, family or unauthorized employees.
The duty of confidentiality and secrecy is part of the duty of loyalty of the employee. In addition to the work performance as the main duty, the duty of loyalty is the most important secondary duty. This includes a variety of partial duties, all of which aim to promote and protect the interests of the employer. In addition to confidentiality, this includes, among other things, the duty of care (Art. 321a para. 2 OR), avoiding the degradation of the reputation of the employer and the duty to surrender (Art. 321b para. 1 and 2 OR).
What Counts as a Secret?
A secret refers to facts that are neither obvious nor generally accessible, that the employer wants to keep secret and in which he has a legitimate interest in maintaining secrecy. It does not matter whether the facts were entrusted to the employee or whether he or she accidentally became aware of them. The decisive factor is that this information has a certain originality or exclusivity and is not considered generally known industry knowledge. In addition to manufacturing and trade secrets, the duty of confidentiality also includes other facts, such as the personal and financial circumstances of the employer.
During the term of the employment relationship, the duty of confidentiality applies absolutely. Thus, employees must not exploit or disclose anything that their employer wants to keep secret. With the expiry of the notice period, a relaxation of the duty of confidentiality takes place, which turns into a prohibition of disclosure. This means that the information in question may still not be actively passed on, but may nevertheless be exploited. Employees may therefore use the knowledge, skills and experience gained at the employer for their professional advancement. However, they must continue to take into account the confidentiality interests of the (former) employer. Over time, the duty of confidentiality gradually decreases and expires completely after a certain period of time. When exactly this is the case depends in each individual case on various factors, such as the position and function of the employee in question in the company. A precise regulation can be agreed in the employment contract, for example in the context of a non-compete clause.
Official and Professional Secrecy
In addition to the labor law regulation, the law in special laws provides for confidentiality obligations for persons with special functions and for certain professional groups. Members of an authority or officials must not disclose secrets that have been entrusted to them in this function or that have been perceived in this official or service position (Art. 320 StGB). The same applies to certain professional groups: According to the law, among others, clergy, lawyers, notaries, doctors, pharmacists and psychologists are obliged not to disclose secrets that have been entrusted to them as a result of their profession.
The assistants of the respective office holder or professional are also obliged to maintain the same confidentiality. The circle of assistants is practically unlimited. The only decisive factor is that the assistant supports the so-called secret bearer in some function in the fulfillment of his task and thereby obtains knowledge of secrets of the person being cared for. Assistant occupations of all kinds usually always fall under the legal term of “assistant”, which is why they are covered by this special duty of confidentiality. Such a special statutory official or professional secret is valid indefinitely and does not end with the employment relationship.
Labor Law and Criminal Law Consequences
In the event of a breach of the duties of loyalty, including the duty of confidentiality, disciplinary measures such as a warning are threatened. In serious or repeated cases, ordinary or immediate dismissal may also be pronounced. The appropriate sanction is determined by the severity of the breach of the duty of loyalty, taking into account all relevant circumstances. In addition to or as an alternative to these labor law consequences, there is also the possibility of criminal prosecution.
The offenses of violation of manufacturing or trade secrets (Art. 162 StGB), official secrecy (Art. 320 StGB) and professional secrecy (Art. 321 StGB) can be punished with a prison sentence of up to three years or a fine.
Whistleblowing: a Special Challenge
A distinction must be made between persons who disclose secrets in an arbitrary manner and without objective reason and so-called whistleblowers. Whistleblowing is when employees want to expose grievances in the company that endanger important interests of third parties or the public. In the case of permissible whistleblowing, the internal requirements of the employer must be observed, for example, internal whistleblowing regulations, if such exist. Before going public, however, the employer, i.e. the direct or next higher supervisor or an internal reporting office set up for this purpose, and only then the competent authority should be informed – whenever possible.
First appearance on Miss Moneypenny:
Confidentiality in the employment relationship
