An industrial-relations issue of some importance has arisen in public forums recently, as it does from time to time. It has to do with breach of confidentiality.
As an employee, what are your responsibilities to keep confidential information garnered in the course of your employment? And as an employer, what are your rights and responsibilities in demanding confidentiality from employees; and as a director on a company’s board of directors, what are your requirements to keep minutes or discussions that take place at the board level confidential?
Not all board directors are shareholders and not all shareholders are board members. If, in these days when business incomes as well as national incomes are dropping, some drastically, discussions about employee retention or retrenchment are going to be essential in both the public and the private sectors. These discussions will start with boards of directors in the private and NGO sectors, and on Cabinet and ministerial levels when they concern the employees of government.
The Minister of Finance forecasts a shortfall in the coming year in national income, from energy tax revenues as well as from unpaid individual income-tax revenues, in the multiple billions.
At the same time reports are coming in of subventions to shelters for the poor, children, the aged, the sexually abused, the homeless and the disabled that have been unpaid since 2020.
In this week’s media the honourable minister noted that his priorities are the 90,000 public employees, not the unemployed or private-sector employees who, through their taxes, contribute towards keeping the 90,000 he cares about in fixed-salary employment. Since he has put that information in the public domain, it is not protected under the law of confidentiality.
In TT, the law of confidentiality comes under what is known as “common law.” Other common laws affecting employment include a duty of care, which requires employers to provide safe environment to work in, including a workplace free from sexual and other harassment; the duty of co-operation, which includes the concept of “reasonableness” both in giving orders and in fulfilling them; a fair day’s work for a fair day’s pay, etc.
Confidentiality, by common law, is an implied part of everyone’s contract of employment, according to the Industrial Relations Act, Section 2, which says, under the definition “worker” “any person who has entered into or works under a contract…whether the contract is expressed or implied, oral or in writing…” Confidentiality is implied by common law in each such contract.
Confidentiality, of course, covers more than unauthorised disclosure of board decisions, although that recently has led to disciplinary action. It also includes leaking information about secret formulae, like the famously private formula for Angostura Bitters, which rumour hath it is known to only two living people.
It includes lists of key clients, and some specialised IT applications being developed before they can be protected under copyright. In other organisations, information pertaining to irregular or inventive (although not necessarily illegal) ways of doing things that could make an organisation more competitive may also be considered confidential.
There is no restriction on what constitutes “information” under the rubric of confidentiality. It can consist of as-yet-unfinished plans, photos taken of documents, technical processes, customer lists, procurement sources, even personal information such as medical issues relating to cancer or other non-communicable diseases suffered by key decision-makers.
If the information is already in the public domain, it cannot be included under the law of confidentiality.
To fire or sue someone for disclosing confidential information, there must be at least three elements: the first is that the information must be clearly identifiable – not, "the CEO isn’t feeling well these days," but, "the CEO has been diagnosed with pancreatic cancer." Second, there must be a potential positive or negative effect on profitability for the organisation – not, “We may need more space if we are ever going to think of adding a new product line,” but, "The owner’s daughter told me that her mother is thinking of selling the acreage next to our western border. If we get a bid in early, we can put our new warehouse there." And third, it must have an identifiable element of confidentiality.
In a competitive setting, at a time when entrepreneurs are competing for economic survival against the massive resources of the government as well as against other entrepreneurs – including those who are willing to pay someone to drive by in a silver Tiida to eliminate anyone with information they do not want to share – confidentiality is more than just advisable. It can be a matter of life and death, for the organisation, if not just for people with loose lips whom the forces of evil want to prevent from talking.
The advice for all organisations, therefore, is to “take in front before in front takes you.” Clear policies about what information is to be kept confidential, from board level to receptionist to messenger, must be set out, both orally and in writing, and made part of all contracts of employment or appointment on the part of contractors and non-executive board members. The penalties for any breach of such confidentiality should also be made clear and made in writing.
There are no guarantees in this life, but knowledge of existing penalties against disclosure is sometimes effective.
The social, economic and political realities of life in TT have changed drastically over the past year. There were eight drive-by shootings over last weekend alone, some victims identified only as "a businessman.” Covid only took one person in the same time period. It is not just the US Embassy that warns us about terrorism.