Summary Dismissal for Violation of the Confidentiality Clause

Summary Dismissal for  Violation of the Confidentiality Clause
Date: 08-03-2023
Year of publication en number of publication: 2023 / 499
Reference: Court of Appeal of The Hague, 24 January 2023, ECLI:NL:GHDHA:2023:59

An employee was dismissed by his employer because he allegedly violated the confidentiality obligation in his employment contract by making statements in a dismissal procedure between the employer and a colleague. The Court of Appeal, however, said that the confidentiality obligation does not aim at making statements in a procedure between an employer and another employee.
In 2020 a home care organisation employed a financial administrator.
Shortly after, the manager who had hired him became engaged in an employment dispute with the employer, resulting in a the employer’s request to dissolve the employment contract. This manager's statement of defence included a written statement of the employee and an e-mail message from the employee to the manager, in which the former had made statements that militated against the employer. The employer's lawyer called the employee into account about this. According to the lawyer, the employee had violated his obligation of confidentiality under his employment contract by revealing confidential consultations between the employer and his lawyer regarding the ongoing dismissal procedure with the manager. Moreover, the statements would largely be incorrect. The employee disputed that the information he had provided was confidential or incorrect, but he was nevertheless summarily dismissed by the employer.
When the employee contested the summary dismissal before the Sub-district Court, the Sub-district Court disagreed with the employee. His claims were rejected. But after appeal by the employee, the Court of Appeal ruled that the employer had not sufficiently demonstrated that the employee's statements were entirely or largely false. Insofar as there had been any false assertions, they had not been sufficiently substantial to justify the summary dismissal. According to the Court, it was plausible that the employee may have had a different perception of the "truth" than the employer had.
Likewise, the accusation that the employee had violated the confidential consultation between the employer and his lawyer by his statement (the employee had stated that, while searching the manager's business e-mail box, the director had told the lawyer that there should be searched for other evidence of fraud) did not justify the summary dismissal eiher, according to the Court of Appeal. The employee had not acted in violation of the confidentiality clause, since no information had been provided to a customer, a relation or another third person, but to the manager’s lawyer who was still working for the employer at the time.
According to the Court of Appeal, the fact that the employee’s statements were used to the detriment of the employer during the dismissal proceedings against the manager was also not sufficient for accusing the employee of having acted in violation of being a good employee. During the Court proceedings, the employer had also used several statements from employee consultations in support of her own point of view, and also the manager was free to do so. The Court of Appeal pointed out that the employee would also have been obliged to give a witness statement if he had been summoned to do so, so that, according to the Court of Appeal, there was no reason why he should not be allowed to make a written statement.
The Court of Appeal did reproach the employee for having made a statement about a remark that the employer allegedly made to his lawyer. According to the Court, the employee should have understood that this remark was not intended for him and that he should not have passed it on just like that. But since that remark had not been very relevant for the manager's dismissal in the end, and since the labour dispute with the manager had also openly been discussed within the employer's company, this reproach did not justify a summary dismissal, according to the Court.
Since the summary dismissal was not upheld, the employer had to pay the employee the wages over the normally applicable notice period, the transitional allowance and a fair compensation, set by the Court, of € 15,000 gross. As for the latter decision, the Court of Appeal considered that the employment relationship between the parties had already been under pressure and that it would not have lasted much longer, also without the summary dismissal.


Making a witness statement against the employer in a dismissal procedure of a colleague is a courageous undertaking for the employee. After all, it was not to be expected that the employer would just sit back and do nothing. It might have been more convenient for the employee had he been called in as a witness by the manager in the dismissal proceedings. In that case he would have been legally obliged to appear and speak, and he could have defended himself against the accusation that he had violated his confidentiality obligation by pointing out that he was legally obliged to make the statement. But Sub-district Court judges do not easily hear witnesses in dissolution proceedings, so it would not have helped the manager much.
The fact that the Court of Appeal did not blame the employee too severely for having made the statements may also be due to the fact that the Court of Appeal considers fact-finding important and that hearing a witness only costs the Court of Appeal extra time, so that a written statement is also a far more attractive option for the Court and, thus, should, not be discouraged.