Employee representatives are thus confronted with conflicting roles and tasks when it
comes to confidential information. Even though reporting back to the employees is
one of the most important duties of a representative, they are often restricted by the
“confidentiality”label. Communicating with the rank and file and respecting confidentiality
to ensure that management provides sufficient information and, early enough, is a delicate
balancing act. In order to do their work properly, confidentiality rules therefore need to be
bent or broken (Hannah and Robertson, 2015).
Virtually all employee representatives face this problem, but in this paper, the focus will be
on employee representatives in European Works Councils (EWCs). These transnational
institutions of employee information and consultation bring together employee representatives
from different countries with the top management of a multinational company to discuss
transnational issues such as the company’s strategy, employment forecasts, cross-border
restructuring, etc. (De Spiegelaere and Jagodziński, 2015). The EWC is, in theory, kept informed
about the general company strategy, large merger cases or strategic investments –sensitive
issues which, if made public, might seriously damage the company and its employees. For the
employee representatives in these EWCs, this confidentiality issue can be even more difficult as
the EWC brings together representatives from very different industrial relations’traditions that
might have divergent opinions on what is confidential and how information should be treated.
A 2016 survey commissioned by the European Commission in 37 EWCs showed that
15 per cent of all employers strongly agreed with the statement that the information and
consultation process in the EWC led to breaches of confidentiality. In contrast, only
2 per cent of the employees surveyed were of the same opinion (ICF, 2016). Earlier research
also showed that real breaches in confidentiality were exceptional (GHK, 2007). But while
these “breaches”might be the exception rather than the rule, the topic is still one that raises
concerns. For companies listed on the stock exchange in particular, detailed planning is
needed on some issues like mergers, acquisitions or major restructurings (Pulignano and
Turk, 2016, p. 29). Based on these and other insights, the European Trade Union
Confederation (ETUC, 2017) included a demand to clarify confidentiality rules in its position
paper on the future of EWCs.
The literature and evidence on practice clearly show that confidentiality is an issue for
employee representatives in EWCs (Hoffmann, 2006). In some case studies, the subject is
touched upon, but rarely developed in detail (De Spiegelaere and Jagodziński, 2016; Steiert,
2001; Telljohann, 2011). De Spiegelaere and Jagodziński (2016), for example, state that the
use and misuse of confidentiality requirements in EWCs can conflict with the employee
representatives’right and obligation to report back to the workforce. In the case studies of
Telljohann (2011), researchers looked into the “inner life”of EWCs. Their objective was to
attain a broader view of the interaction processes and operations of different EWCs.
Unsurprisingly, they also ran into the same confidentiality issues with which employee
representatives were confronted, but did not discuss these issues in detail in the paper.
Previous research thus notes confidentiality as an important point of attention concerning
the goal to make EWCs a proper functioning instrument of social dialogue. However, none
of these studies goes into depth on this topic, which is why an in-depth look at
confidentiality in EWCs will be the aim of this study.
In general, little is known about how EWC representatives treat confidential information,
why they do what they do, and how it affects their EWC and them as individuals. These will
be the central questions of this paper, which will make use of insights from three explorative
case studies on EWCs and base its analysis on EWC and industrial psychology literature.
According to Fitzgerald and Stirling (2004) there are three C’s which prevent EWCs from
realising their full potential: consultation, co-determination and confidentiality. Focussing on