A new ground for dismissing employees at the initiative of the employer was introduced into the Labor Code of Ukraine: for failure by the employee to comply with the rules of conduct regarding non-disclosure of restricted information.
Relevance of changes
The need to resolve issues related to the non-disclosure of restricted information has been long overdue. The need for such changes has become especially acute in the last 5 years, when first quarantine, and then a full-scale invasion, forced many employers and employees to switch to remote or mixed work modes. In such a mode, it is much more difficult to control possible leaks of restricted information. In addition, for certain business entities in the realities of war, streamlining the issue of employees' compliance with confidential information and trade secrets has become extremely important. The war has made the protection of official and commercial data even more relevant.
Finally, in the summer of 2024, the legislator introduced a new ground for dismissing employees at the initiative of the employer into the Labor Code of Ukraine (LCU): for failure by the employee to comply with the rules of conduct regarding non-disclosure of restricted information. The relevant changes came into force in September 2024.
Dismissal for disclosure of restricted information
In accordance with Clause 14, Part 1, Article 40 of the Labor Code of Ukraine, an employment contract may be terminated if the employee violates the rules of conduct regarding non-disclosure of restricted information (Article 142 of the Labor Code of Ukraine).
This ground is directly related to the amendments made to Art. 142 of the Labor Code of Ukraine. The corresponding amendments supplemented the article with provisions stating that the rules of conduct at an enterprise, institution, or organization may be part of the internal labor regulations (ILR), which contain provisions, in particular, on the obligations of employees not to disclose restricted information, in particular information constituting a state or commercial secret, as well as on the conditions for working with confidential information.
At the same time, the said amendments contain a caveat that Establishing rules of conduct at enterprises, institutions, organizations that are of strategic importance for the economy and security of the state, and/or critical infrastructure facilities or operators is mandatory. The list of such enterprises is determined by Resolutions of the Cabinet of Ministers of Ukraine No. 83 dated March 4, 2015 and No. 1109 dated October 9, 2020.
So, the adopted innovations provide for:
- the possibility of establishing rules of conduct regulating work with restricted access information;
- the mandatory implementation of such rules at strategic enterprises and critical infrastructure facilities.
Despite the indication that the rules of conduct are binding only for relevant enterprises, the implementation of such rules for other business entities is also important. Moreover, without the implementation of appropriate rules of conduct, it will be impossible to dismiss an employee on the new grounds specified in Article 40 of the Labor Code of Ukraine..
However, in order to be able to implement dismissal on a new basis, it is necessary to develop clearly regulated rules for working with confidential information. Such steps will help to implement or improve the system of protection against disclosure of important information at the enterprise.
What does the employer need to do?
To implement a new ground for dismissal, the employer must take a number of actions and prepare certain documents:
Determine the composition and volume of restricted information
- The list of information that may be classified as confidential information is contained in Art. 21 of the Law of Ukraine “On Information”. The concept of a trade secret is disclosed in Art. 505 of the Civil Code of Ukraine. Also, in defining information that constitutes a trade secret, Art. 36 and 162 of the Commercial Code of Ukraine will be useful.
- Take into account case law (e.g., the case No.910/6224/19, Supreme Court resolution of 22.10.2024). The Supreme Court indicated that a trade secret includes only data and information that, in general or in a certain form and set of its components, are not easily accessible to certain categories of persons. The commercial value of such information is that its use provides the owner of the information with certain economic advantages. Confidentiality obligations can be established in clearly drawn up agreements and such obligations are fair for reasons of good faith in the aspects of understanding the conduct of economic activity in economic competition.
Develop a local act on the protection of restricted information
- This could be an instruction, regulation or order.
- The document must contain: the composition and volume of information with limited access; a list of information that is confidential, official, and constitutes a trade secret; conditions for working with information with limited access; the procedure for transfer and access; a list of positions whose responsibilities will include access to and work with information with limited access; a definition of what actions will be considered disclosure of information with limited access; responsibility for disclosure.
- Inform employees in writing about the accepted documents.
Implement rules of conduct regarding non-disclosure of information
- Include them in the PVTR or create a separate document. It should be noted that the amendments to Art. 142 of the Labor Code of Ukraine do not give a clear answer whether the relevant rules can be implemented as a separate document in the absence of a PVTR at the enterprise, or whether such rules should be part of the PVTR. But if we consider in totality clause 14 part 1 of Art. 40 and part 2 of Art. 142 of the Labor Code of Ukraine, we can conclude that in the absence of a PVTR, the rules of conduct can be implemented as an independent document.
- Provide employees with the relevant documents in writing.
Without clear internal documents, the implementation of a new ground for dismissal will be impossible.
Procedure and features of dismissal
To minimize the risks of legal challenges, it is important to follow certain steps:
Recording the fact of violation. First of all, it is necessary to document in detail the fact of the employee's violation of the rules of conduct with information that has limited access. Such documents may include:
- Acts, reports, protocols, decisions of state bodies.
At the same time, the issue of recording and proving violations that occurred outside the employer's territory remains problematic. For example, such a case may be the transfer of information by an employee to a third party in public places. In this context, it is still difficult to predict what evidence of recording will be appropriate and sufficient when considering a labor dispute by court. But in any case, the employer must take all actions not prohibited by law to record violations.
Compliance with disciplinary procedures. It is imperative to take into account that a violation of the rules of conduct in terms of disclosing confidential or official information will be a violation of labor discipline. Therefore, when dismissing an employee for violating the rules of conduct, the employer must follow the procedure specified in Articles 147 - 149 of the Labor Code of Ukraine:
- The application period is no more than 1 month from the date of detection, but no later than 6 months from the moment of violation.
- Obtaining written explanations from the employee.
- Taking into account the severity of the violation, the harm caused, and the employee's previous behavior.
It is worth noting that, unlike dismissal for systematic violation of official duties, if disciplinary measures have previously been applied to the employee (clause 3, part 1, article 40 of the Labor Code of Ukraine), For the application of Clause 14, Part 1, Article 40 of the Labor Code of Ukraine, one fact of violation by an employee of the obligation not to disclose restricted information is sufficient.
In addition, it is important to remember that in the case of so-called "disciplinary dismissals", an important component is the employee's fault in committing a disciplinary offense. In view of this, the dismissal of an employee may be recognized as unlawful in cases where the employer failed to provide adequate protection for confidential information/trade secrets or did not specify the list of restricted information sufficiently, and this resulted in the employee leaking information.
Taking into account guarantees for certain categories of employees. Dismissal on the basis of clause 14, part 1, article 40 of the Labor Code of Ukraine occurs at the initiative of the employer, therefore, in this case, it is necessary to take into account the guarantees for certain categories of employees provided for in articles 119, 119-1, 184, 198 of the Labor Code of Ukraine.
Therefore, for the legality of the dismissal, it is important to properly document the violation and follow the procedure.
Resume
In order for dismissal on a new basis to take place without risks for the employer, it is necessary:
- Clearly define and document the rules for working with confidential information.
- Inform employees in writing of the established rules.
- Record violations correctly and in detail and follow disciplinary procedures.
These steps will allow not only to use the new norm of the Labor Code of Ukraine in practice, but also to significantly strengthen the protection of confidential information at the enterprise.
