Consequences of disclosing confidential information

ICE reps and other employees entrusted with confidential information need to be aware that, under the regulations, the obligation to comply with the confidentiality requirements is a duty owed to the employer and a breach of the duty is actionable accordingly.

Acas underlines the significance of this issue, both in its Code of Practice on time off for trade union duties and activities, and in its guidance on Non-Union Representation in the Workplace. It reminds representatives to respect and maintain the confidentiality of information they are given access to, where the disclosure would seriously harm the functioning of, or would be prejudicial to, the employer’s business interests or reputation. “Representatives should understand that unauthorised publication risks damaging the employer’s business, straining relations with the representative body concerned, possible breaches of individual contracts of employment and, in extreme cases such as unauthorised publication of price-sensitive information, the commission of criminal offences.”

The regulations are not prescriptive, so it is left to employers and reps to reach their own agreement on how breaches would be punished, such as loss of office and possibly disciplinary action. However, “whistleblowing” employees are protected from action (regulation 25(5)) if they reasonably believed that their leaking of confidential information was a “protected disclosure” under section 43A of the Employment Rights Act 1996 - see the latest edition of the LRD booklet Law at Work (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1827).