Confidentiality and loyalty: This is how dangerous the staff council is!

Confidentiality and loyalty: This is how dangerous the staff council is!

In the current coalition agreement between the Union and the SPD, staff representation law is not mentioned. This gap has particularly drawn attention from the German Civil Service Association, which emphasizes the importance of co-determination as well as the rights and obligations of staff representatives. An important issue here is the obligation of confidentiality that members of staff councils must adhere to.

A breach of confidentiality can result in exclusion from the staff council in accordance with Section 30 BPersVG as well as criminal consequences. The lawyer Stefan Kascherus provided information about these legal pitfalls at the 15th Forum on Personnel Representation Law and made it clear that the obligation of loyalty to the employer is fundamental for staff councils.

Legal framework for confidentiality

Members of staff councils are obliged to maintain confidentiality with regard to all matters that come to their attention in the course of their duties. This regulation applies to staff council members, their replacement members, department heads as well as their representatives and other affected persons. Compliance with confidentiality is crucial for trust between the department and the staff representative Haufe reported.

The Federal Personnel Representation Act has clear regulations regarding confidentiality. Failure to comply can have significant consequences, as they not only endanger the basis of trust between employees and the staff council, but can also have consequences under labor law. In the event of violations, in addition to disciplinary measures, prison sentences of up to five years are possible in accordance with Section 203 Paragraph 2 No. 3 StGB.

Special challenges and exceptions

The challenge for staff councils is to reconcile the duty of loyalty and the duty of confidentiality. This becomes particularly difficult when it comes to work-related violations by colleagues, such as alcohol problems while driving. According to current case law, the duty of confidentiality takes precedence over the duty to report breaches of duty. However, the obligation to disclose applies if there is a risk of serious consequences for the office.

It should be noted that the law also provides for some exceptions to the obligation of confidentiality. For example, staff council members do not have to be obliged to maintain confidentiality towards other members of their representation. Even in the case of obvious and less significant facts, there is no obligation to maintain secrecy. However, an absolute obligation of confidentiality applies in principle, regardless of any indication of the need for secrecy.

The need for consultation if there are any doubts about confidentiality is also emphasized. The duty of confidentiality is not only relevant for staff councils, but also applies to all employees in an office, which significantly expands the legal framework.

Overall, this context highlights the importance of responsible and legally sound staff representation and the challenges that arise from the various obligations.