Some employers, emphasizing the need to protect legitimate business interests, tend to enforce extensive confidentiality rules towards the works council. However, these restrictions can hinder the works council’s ability to perform its attributions. Confidentiality can therefore be a strategic issue for the relationship between company and employee representatives.
- What does the Labor Code say?
According to Article L. 2315-3 of the French Labor Code, works council members must maintain ”professional secrecy” (i.e. confidentiality) regarding manufacturing processes. Additionally, they are bound by a duty of non-disclosure of confidential information explicitly designated as such by the employer.
Confidential information in the BDESE (Economic, Social, and Environmental Database) is also protected, but only if it is inherently confidential, labeled as such by the employer afor a specific duration (Article R. 2312-13).
- The extent of confidentiality obligations
The ”professional secrecy” obligation applies strictly to manufacturing processes and must be respected without any employer reminder. The additional duty of non-disclosure applies only if the employer explicitly labels the information as confidential and if the information is inherently confidential to protect the company’s legitimate interests.
Examples of confidential information which must not be disclosed by the works council:
- Financial forecasts and company strategy documents;
- Economic alert procedures and business transfer information;
- Employee compensation.
However, information already made public by the employer cannot be considered confidential.
- Sanctions for breaching confidentiality
For works council members:
- Violating professional secrecy is a criminal offense and can lead to prosecution.
- Breach of the non-disclosure duty may result in disciplinary action, including dismissal.
Note that if an employer wrongfully sanctions a works council member for sharing non-confidential information, the sanction can be voided.
For employers abusing confidentiality rules:
- The works council can challenge excessive confidentiality claims and demand justification.
- If an employer unreasonably classifies all documents as confidential, the works council can bring the matter before the court, potentially leading to delays in a consultation process.
Conclusion
While confidentiality is necessary to protect business interests, it must not prevent the works council from exercising its role. Employers must justify confidentiality claims, and works council members must respect genuine confidentiality rules. Legal recourse is available for both parties in cases of misuse.