Companies are shielded against the indiscretions of accounting
Confidentiality agreements of key employees, such as the financial sector, are intended to prevent data leaks and facilitate legal claims when controls fail.
Some accountants and auditors are worth more so silent that at that count. Therefore, where appropriate, the ability to remain silent is a well especially quoted by the companies that hire them.And to ensure its discretion, they make them sign confidentiality agreements, to skip them, facilitate claims through the courts.
Employees who do disclose accounting information of your company can lose their job. The question is whether the accounting data are considered trade secrets and revealing them if the employee incurs unlawful conduct. Article 54.2.d of the Workers’ Statute allows the employer to dismiss an employee in the event of breach of contractual good faith and breach of trust, and in this section could frame a behavior as the violation of accounting secrets.
In addition, the worker, on charges such as auditor or accountant must maintain silence for legal mandate 5th article of the regulation, according to which the employee has a basic duty to comply with the specific obligations of of course, in accordance with the rules of good faith and diligence.
A judgment of the Superior Court of Galicia last November 23 mentions these articles of the Statute of Workers in a case in which good taken for the dismissal of a worker forwarded two personal email addresses and a total BCC 196 emails with confidential company information.
– Although the criminal law does not regulate the crime of violating the secrecy of accounting, it is indirectly punished for offenses linked within the market and consumers and the discovery and disclosure of secrets.
– Article 200 of the bookkeeper brisbane to discover, disclose or transfer data reserved for legal persons, without consent. Penalties may be one to four years in prison in addition to fines and professional disqualification.
– People who take over data or documents in order to discover a secret company, the penalty will be applied between two and four years in prison in addition to the fine, according to Article 278 of the Penal Code .
– The dissemination, disclosure or transfer of a company secret held by a person having legal or contractual obligation to maintain confidentiality is punishable by imprisonment of two to four years, but it is worth their advantage is reduced.
– If the reason for secrecy has an unlawful purpose, either from a criminal point of view or from the administration, it does not have to be protected and its disclosure by a worker should not have to incur any punishment.
Specifically, in this case it was confidential and sensitive information not only about the company but also the contents of privacy of other workers, such as medical certificates or its working parts and the quadrant staff holidays. the situation is also that the employee had signed confidentiality clauses with the company.
Dismissal, which was first declared void by the court instance, has received the approval of the high Galician court precisely on the grounds that the employee’s conduct, which had already accumulated various sanctions, “is contrary to those basic rules of loyalty and honesty, with a clear breach of trust in the performance of work “. According to the judgment says, this behavior implies a serious and willful breach of contract deserving the ultimate sanction of dismissal, as provided for in Article 54.2.d of the Workers’ Statute.
Cases like this occur relatively frequently in business, but the problem is to determine what constitutes trade secrets and whether the accounting information included in them. Under this concept not only are the purely industrial or technical secrets, but also commercial data, intellectual capital of the economic and financial, says Professor Miguel Angel Villacorta, in an article Accounting Review.
In principle, a secret company information is confidential when there will be locked away by the owner and has value for a rival.To receive this qualification, the information disclosed must have sufficient entity to harm the competitiveness of the company.
As for who should keep the secret, according to Villacorta, it is best to consider all the subjects who have an employment relationship with the company, among which are included the accounting and management of this department.
Concerning the time that the worker must respect the confidentiality of information, the doctrine contradicts the courts.On the one hand, some argue that sentencing is only required to remain silent while working for the company positions as manager, employee or worker, while other failures are insufficient to limit the period of employment.
The question here is what happens if an employee decides to leave the job voluntarily to reveal secrets.Villacorta said that in these cases is expected to appreciate the importance and significance of secrecy and the need to strengthen the position of the courts when a worker extinguish their employment precisely to deal with confidential information.
Often, workers who carry confidential information of the company do so with the intention of giving it to competition or create your own business making use of that data. These situations come directly in the field of unfair competition. Legislation in this area considered unfair ‘disclosure or exploitation, without authorization from the owner, trade secret or any other kind of business secrets to which they have gained legitimate access, but with reserve duty, or unlawfully. ”
Corporate history is littered with examples of problems of use of confidential information. One of the most notorious cases in Spain occurred in the early nineties, when the executive Jose Ignacio Lopez de Arriortúa was accused by General Motors, years after being signed by Volkswagen, to seize illegally of company documents and reveal secrets the German firm. After years of lawsuits and litigation groups they signed an agreement in 1997 that VW would pay 100 million dollars (77 million euros) to buy GM and 1,000 parts per million.
Employees who become accomplices for not denouncing
Loyalty to the company of a worker may falter for many reasons, but the situation becomes particularly sensitive when the employee is aware that it is your boss who, for example, is responsible for a crime accountant. When such conflicts exist, the law is clear and the duty to report a crime prevails over any type of confidentiality clause that an employee is forced to sign.
Otherwise, you can see implicated complicity default and can even end it is shown that the accused was aware that there was a criminal practice and could have stopped or avoided had spoken before. There are some exceptions that do not require priority duty to report, according to Bernardo del Rosal, Professor of Criminal Law and counsel of the Litigation and Arbitration department of Clifford Chance.
For example, it is unclear what happens when a crime in releasing the employee is autoinculpando that has actively engaged in the conduct. In nonviolent property crime, there is no obligation to reveal when it comes to a family. As for the next steps, Bernardo del Rosal explained that it is normal to go to the Director of Regulatory Compliance, an increasingly popular figure but still have not implemented most of the companies.
You can also use the confidential reporting channels that have established many companies as an ethical line following the changes to the Criminal Code and to recognize the responsibility of companies by employees crimes committed in its name. In the absence of these channels or there are suspicions that the company will not cease its practice and will be achieved only dismissal, the best option is to go to the police, a police court or the prosecution, said the expert of Clifford Chance.
We must reckon with the possibility that the investigation concluded that no crime. Legally, there is no problem as long as until terminated falsely enough to have a prima facie suspicion and to go to the authorities. But that will not stop firing, at least it is considered inappropriate because the employee has acted as an informer by law.
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