Secrecy is an obligation for employees

During the employment contract, an employee may become privy to business secrets or confidential information related to the employer. Employees must realise that - even if not a word is said about this in the employment contract - there is a fundamental duty of confidentiality.

Secrecy during and after the employment contract

Article 17.3 of the Employment Contracts Act imposes this secrecy as one of the fundamental obligations of every employee. It is striking in this regard that it is explicitly stated that this secrecy applies not only during the term of the employment contract, but also upon termination of the employment relationship.

What are business secrets?

The key question is what the legislator considers ‘business secrets’. In case law, we find the following examples: preferential rates of the company with suppliers, not yet published financial information about the company, documents of technical processes that have not been made public, not yet known commercial projects, future restructuring, …

Acquired knowledge is not a business secret!

It can also be deduced from case law that a very specific technical or commercial skill, which an employee has been taught by the employer, is not considered a business secret. This is, therefore, considered to be acquired knowledge that is separate from any secret document that should be consulted for this purpose.

Violation may result in dismissal for serious reasons

If an employee nevertheless violates this duty of confidentiality, this can lead to dismissal for urgent reasons, without any right to any severance pay. The employer may also claim damages for the damage suffered or, in summary proceedings, obtain an order to stop the illegal acts, whereby a penalty to be paid is imposed for each new infringement.

Third-party complicity in breach of contract

The new employer must also watch out in case it abuses a competitor’s confidential information via the former employee. After all, the new employer may be faced with claims for damages and penalties for third-party complicity in breach of contract. In the extreme case, the violation of business secrets can even be brought before the criminal court on the basis of Article 309 of the Criminal Code. This can be accompanied by criminal penalties ranging from 3 months’ to 3 years’ imprisonment and/or fines of 300 to 12,000 euros.

So it is better to think twice before you become too indiscreet!


Tags: Secrecy
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