The European Public Limited-Liability Company (Employee Involvement) (Northern Ireland) Regulations 2009

PART 7CONFIDENTIAL INFORMATION

Breach of statutory duty

24.—(1) Where a body which is—

(a)an SE,

(b)a subsidiary of an SE,

(c)a participating company, or

(d)a concerned subsidiary,

entrusts a person, pursuant to the provisions of these Regulations, with any information or document on terms requiring it to be held in confidence, the person must not disclose that information or document except in accordance with the terms on which it was disclosed to the person.

(2) In this regulation a person referred to in paragraph (1) to whom information or a document is entrusted is referred to as a “recipient”.

(3) Where paragraph (1) applies—

(a)the obligation to comply with that paragraph is a duty owed to the body that disclosed the information or document to the recipient, and

(b)a breach of the duty is actionable accordingly (subject to the defences and other incidents applying to actions for breach of statutory duty).

(4) Paragraph (3) does not affect—

(a)any legal liability which any person may incur otherwise than under this regulation by disclosing the information or document, or

(b)any right which any person may have in relation to such disclosure otherwise than under this regulation.

(5) No action lies under paragraph (3) where the recipient reasonably believed the disclosure to be a “protected disclosure” within the meaning given by Article 67A of the 1996 Order(1).

(6) A recipient to whom a body mentioned in paragraph (1) has, pursuant to the provisions of these Regulations, entrusted any information or document on terms requiring it to be held in confidence may apply to the Industrial Court for a declaration as to whether it was reasonable for the body to require the recipient to hold the information or document in confidence.

(7) If the Industrial Court considers that the disclosure of the information or the document by the recipient would not, or would not be likely to, harm the legitimate interests of the undertaking, it must make a declaration that it was not reasonable for the body to require the recipient to hold the information or document in confidence.

(8) If a declaration is made under paragraph (7), the information or document is not at any time after the making of the declaration to be regarded as having been entrusted to the recipient who made the application under paragraph (6), or to any other recipient, on terms requiring it to be held in confidence.

Withholding of information

25.—(1) Neither an SE nor a participating company is required to disclose any information or document to a person for the purposes of these Regulations where the nature of the information or document is such that, according to objective criteria, the disclosure of the information or document would seriously harm the functioning of, or would be prejudicial to,—

(a)the SE or any subsidiary or establishment of the SE, or

(b)the participating company or any subsidiary or establishment of the participating company.

(2) Where there is a dispute between the SE or a participating company and—

(a)where a representative body has been appointed or elected, a member of that body, or

(b)where a representative body has not been appointed or elected, an information and consultation representative or an employee,

and the dispute is as to whether the nature of the information or document which the SE or the participating company has failed to provide is such as is described in paragraph (1), the SE or participating company, or a person referred to in sub-paragraph (a) or (b), may apply to the Industrial Court for a declaration as to whether the information or document is of such a nature.

(3) If the Industrial Court makes a declaration that the disclosure of the information or document in question would not, according to objective criteria, be seriously harmful or prejudicial as mentioned in paragraph (1), the Industrial Court must order the company to disclose the information or document.

(4) An order under paragraph (3) must specify—

(a)the information or document to be disclosed;

(b)the person or persons to whom the information or document is to be disclosed;

(c)any terms on which the information or document is to be disclosed;

(d)the date before which the information or document is to be disclosed.