Breach of confidentiality. Instant dismissal

How seriously must an employee misbehave to justify instant dismissal? The standards set in this respect are high for several reasons. On instant dismissal the employee loses his right to an unemployment benefit – he is then deemed to be voluntarily unemployed – and the employer must therefore have a compelling interest in the instant dismissal. The Court of Appeal in Amsterdam recently ruled that the interest of the employer outweighed the interest of an employee who had breached his duty of confidentiality. The instant dismissal was upheld.

Confidential information leaked

In these proceedings the employee had been a member of the employer’s Works Council for four years. This meant that the employee – in addition to his duty of confidentiality vis-à-vis the employer – was also subject to the duty of confidentiality imposed on members of the Works Council in accordance with the Works Councils Act. The employer instantly dismissed the employee when it appeared that the employee had consulted and shared information stored on the protected part of the server with several colleagues. Only Works Council members were allowed to use and access the protected part of the server.

Protected part of server

The Court of Appeal established that the employee had failed to report that he – after termination of his Works Council membership – still had access to information placed on the protected part of the server by the Works Council. The employee was not entitled to consult that information, he knew that the employer attached great importance to the confidentiality thereof, and that the employer would take all necessary measures if such confidentiality was breached. According to the Court of Appeal the employee’s defence that the consequences of the passing on of confidential information were never pointed out therefore did not hold. Neither did the argument that the employer had failed to pursue a consistent policy in this respect.

Former Works Council member

The Court of Appeal established that the employee had not only called up information stored in one of the Works Council’s regular files but had also called up information stored in a sub-file entitled ‘strictly confidential.’ Moreover, the employee shared this information with several colleagues. Under those circumstances the employer could not be required to continue the employment with the employee. That the employee was a former member of the Works Council, and was therefore someone from whom other behaviour was particularly expected, only made matters much worse.