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On 13 October 2020, the Supreme Court in Madrid ruled on the question of whether an EWC member may be dismissed for passing on confidential information from the European Works Council to works councils in Spain. The US company IBM had fired the EWC vice-chairwoman without notice, which the judges considered a violation of the freedom of association guaranteed by the constitution. In addition to full salary back payment, she received compensation of 18,000 € (the upper limit in Spain is 25,000 €) and was able to return to work after five months.
In February 2018, immediately following an EWC meeting, she had informed the Spanish works councils of an impending downsizing of the workforce. The works councils then proceeded to inform the workforce. On 9 April 2018, she was dismissed without notice, although she had been employed by the company since 1984 and had been a member of the EWC since 1999. On 3 September 2018, a social court in Madrid declared the dismissal invalid. However, the company continued court proceedings all the way up to the Supreme Court but failed in all instances. The EU Directive explicitly stipulates that EWC members may (and should) inform the works councils in their country. There are provisions for the EWC to directly inform the workforce only if there is no employee representation in a country, for part or all of the workforce.
Redundancies are in principle not subject to confidentiality
The Supreme Court made a very far-reaching decision. Even if information concerning a restructuring is explicitly declared confidential by central management, if jobs are affected, it can never be subject to an obligation of confidentiality in the EWC. This view is also shared by the European Court of Justice in a 2005 ruling. An employee representative on the board of a Danish bank informed his union about a planned merger. Such a breach of the duty of confidentiality is permissible if it concerns the disclosure of information for the fulfilment of trade union duties, according to the European Court of Justice (see report in EWC News 3/2009).
This principle is also adopted in the EU Directive on the Protection of Trade Secrets of June 2016. The acquisition and disclosure of trade secrets is always considered lawful in the context of the exercise of the rights of workers' representatives to information, consultation and participation and in the collective defense of the interests of workers and employers, including co-determination (Articles 3 and 5 and Recital 18).
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4/2020
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