Dismissal at the initiative of the employer has become... fashionable. With the expansion of the labor rights of citizens, with an increase in the level of legal awareness of workers, the labor relations between employer and employee have also changed. Workers increasingly began to demand from employers strict observance of their own rights, less and less imbued with the problems and goals of the employers themselves. Employers have become less scrupulous in paying attention to the aspirations of employees, responding less and less to their requests. This trend is most pronounced in the area of ​​termination of an employment contract. Previously, employers, having “caught” an employee committing a disciplinary offense, were less strict and categorical in matters of mandatory punishment for any violation of discipline. It happened that for minor “sins,” especially if they were committed for the first time, the employee was not punished at all, limiting himself to an oral reprimand without formalizing disciplinary action. In other cases, for example, in the case of a more serious violation of discipline, the violating employee was allowed to resign of his own free will, and not “under the article”, imbued with the problems that a negative entry in the work book would create for the employee. Now, employers immediately and unconditionally exercise their right to terminate the employment contract “under the article”, preventing the violating employee from escaping punishment in the form of dismissal.

Legal requirements for dismissal for disclosing secrets

According to sub. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, an employment contract can be terminated by the employer in the event of a single gross violation by the employee of labor duties: disclosure of secrets protected by law (state, commercial, official, etc.), which became known to the employee in connection with the performance of his labor duties, including disclosure of personal data of another employee. This reason for dismissal is becoming increasingly “popular” among employers. However, many of the dismissals on this basis are subsequently recognized by the courts as illegal. Let's look at why this happens and what are the most common mistakes made by employers who decide to part with an employee who has divulged some of the employer's secrets. Based on the errors, we will determine the legal requirements for dismissal on the basis mentioned, without compliance with which the dismissal cannot be recognized as legal.

We must also not forget that when considering a case on the reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer (clause 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 17.03. 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

Requirement 1: prove the existence of grounds for dismissal

Relevant clarifications regarding the conditions under which dismissal MAY be carried out under sub-clause. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, were given back in paragraph 43 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.

If the employee challenges the dismissal under sub. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, the employer is obliged to provide evidence indicating that:

• the information that the employee disclosed, in accordance with current legislation, relates to state, official, commercial or other secrets protected by law or to the personal data of another employee;
• this information became known to the employee in connection with the performance of his job duties;
• the employee agreed not to disclose such information (for example, the obligation not to disclose such a secret is expressly provided for in the employment contract with the employee).

In the absence of at least one of the above conditions, termination of the employment contract under sub. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation cannot be recognized as legal.

Moreover, based on the meaning of sub. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, specific information containing commercial or other secrets protected by law, which the employee undertakes not to disclose, must be accurately and clearly documented and listed (for example, in an employment contract or annex to it, a written undertaking, etc.).

Requirement 2: prove compliance with the procedure and the period of punishment in the form of dismissal

Dismissal of an employee for a one-time gross violation of labor duties by the employee is a disciplinary measure (Part 3 of Article 192 of the Labor Code of the Russian Federation), therefore, when applying it, the employer must follow the procedure for bringing the employee to disciplinary liability, provided for in Art. 193 Labor Code of the Russian Federation:

• the employee must be asked for an explanation;
• he is given two full working days to give explanations;
• if the employee refuses to provide explanations or if they are actually not provided, a report should be drawn up (as well as in other cases when the employee refuses to familiarize himself with the document, affix a signature, etc.).

Based on the provisions of Art. Art. 192–193 of the Labor Code of the Russian Federation, as well as clarifications of paragraphs. 52–53 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, in the event of dismissal on the grounds in question, the employer must also comply with the deadlines established by law: dismissal on the specified grounds is allowed no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, stay him on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of employees (Part 3 of Article 193 of the Labor Code of the Russian Federation). A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit or audit of financial and economic activities or an audit - later than two years from the date of its commission. The specified time frame does not include the time of criminal proceedings (Part 4 of Article 193 of the Labor Code of the Russian Federation).

When imposing a penalty, the employer must also take into account the severity of the offense and the circumstances in which it was committed (Part 5 of Article 192 of the Labor Code of the Russian Federation), as well as the employee’s previous behavior and attitude to work.

Requirement 3: prove the fact of the offense and the correctness of its classification as a violation of discipline

In accordance with the requirements of Art. Art. 192–193 of the Labor Code of the Russian Federation, the employer must also prove the fact of misconduct (in this case, the fact of disclosure of information).

Requirement 4: prove the fact of dismissal not during the employee’s vacation or illness (if contested)

According to Part 6 of Art. 81 of the Labor Code of the Russian Federation, it is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) during the period of his temporary disability and while on vacation.

Requirement 5: prove compliance with guarantees for employees especially protected by law (if challenged)

In accordance with Part 1 of Art. 261 of the Labor Code of the Russian Federation, termination of an employment contract at the initiative of an employer with a pregnant woman is not allowed, except in cases of liquidation of the organization or termination of activities by an individual entrepreneur.

Errors leading to dismissal for disclosing secrets being declared illegal

Practice shows that if the court recognizes dismissal under sub. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is illegal, employers, as a rule, make mistakes in complying with one (or several) of the above requirements.

Let's look at errors using examples from practice.

Error 1: the fact of the offense and the correctness of its classification as disclosure of a secret protected by law/employer has not been proven

Very often, employers are overly hasty in perceiving an employee’s actions or inaction as a violation of labor discipline and, without going into much detail, tend to immediately qualify this as grounds for dismissal, in this case, for disclosing a secret protected by law. Meanwhile, the courts do not agree with the correctness of such conclusions by employers, considering them hasty and often incorrect. For example, copying to a flash drive cannot always be clearly interpreted as disclosure of information, as well as communicating via e-mail with the transfer of various files. The removal of documentation outside the enterprise should also not necessarily be immediately regarded as an employee’s spying actions for the benefit of competitors.

Case Study 1. An employee dismissed at the initiative of the employer on the basis of paragraphs. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation for “a one-time gross violation by an employee of labor duties with the disclosure of a legally protected secret (state, commercial, official, other) that became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee,” considered the dismissal illegal and filed a lawsuit to declare the dismissal illegal and reinstated at work. The court found that the reason for dismissal on the above grounds was the conclusion based on the results of an internal audit, which established that the employee allowed an unauthorized person into the reception area and allowed him to familiarize himself with confidential information, thereby violating the Regulations “On the Confidentiality of Information Regime” of the employer. The court did not agree with this conclusion of the internal audit. Recognizing the dismissal as illegal, the court pointed out that, referring during the consideration of the dispute on the merits to the fact that the plaintiff had disclosed a secret protected by law, the defendant did not provide the court with sufficient evidence of this fact, and therefore the dismissal of the employee under subsection. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is illegal, and she is subject to reinstatement in accordance with the requirements stated in the claim (appeal ruling of the Khabarovsk Regional Court dated October 31, 2012 in case No. 33-6750/2012).

Conclusion: access of an unauthorized person to the closed territory of the employer does not mean unambiguous disclosure of a secret protected by law.

Case Study 2. The employee filed a lawsuit against the employer for recognition of dismissal under subsection. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is illegal and changes in the wording of the grounds for dismissal. The court found that the reason for dismissal was the fact that the employee copied the employer’s information, established and recorded by the employer. However, the court found it unproven that the employee disclosed a secret protected by law, even if the fact of copying information was proven. In this dispute, the court declared the dismissal illegal and satisfied the employee’s demands (appeal ruling of the Supreme Court of the Republic of Tatarstan dated August 29, 2013 in case No. 33-10267/13).

Conclusion: the proven fact of copying data that constitutes a secret protected by law does not always automatically prove the fact of their disclosure.

Error 2: incorrectly classifying an action as a misdemeanor

Sometimes an employer tends to overdo it in classifying ordinary actions performed by an employee within the framework of his job function and job description as a violation of discipline. That is, the employer mistakenly classifies the action/inaction as a misdemeanor. This, in turn, leads to the recognition by the court (in the event of a labor dispute) that there was no actual misconduct for which the employer would have the right to punish the employee. And since there is no misconduct, it means there is no basis for dismissal as a disciplinary measure. Consequently, dismissal under sub. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is illegal.

Example from practice. Ch. filed a lawsuit against the employer to declare her dismissal illegal, to change the wording of the grounds for her dismissal from sub. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation on clause 3, part 1, art. 77 Labor Code of the Russian Federation. The court satisfied the stated claims, finding that the employer did not have sufficient grounds to terminate the employment relationship with the plaintiff on the above grounds.

Thus, the court found that the reason for the plaintiff’s dismissal was the results of an inspection conducted by the defendant according to the Department of Economic Security. According to the materials of this audit, as a result of monitoring the use of official email, numerous cases of sending information containing information classified as bank secrecy were revealed from the official email to external email addresses belonging to third parties.

The court found that information classified as bank secrecy was sent to the specified email addresses by the employee at the request of legal entities-clients of the bank; the addresses belonged to authorized representatives of legal entities acting on behalf of these legal entities on the basis of powers of attorney, in which, in particular , it was indicated the right to receive information both orally from bank representatives and through specific email addresses identified during the verification. There were no complaints and statements from legal entities, information on transactions of which was transferred by the plaintiff to their authorized representatives, in connection with the above actions of the plaintiff, no adverse consequences for both the defendant and these legal entities, these actions of the plaintiff did not entail, evidence of otherwise the case materials do not contain.

At the same time, the court in its decision drew attention to the fact that, in accordance with the provisions of the obligation on non-disclosure of confidential information signed between the parties, the plaintiff was obliged not to disclose confidential information to third parties, whereas in this case the plaintiff provided the requested information to authorized persons of the bank's clients. Thus, the defendant did not have sufficient grounds to dismiss the plaintiff under sub. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation (decision of the Ostankino District Court of Moscow dated April 15, 2013; appeal ruling of the Moscow City Court dated June 28, 2013 No. 11-20217/2013).

Conclusion: disclosure not to third parties, but to authorized representatives does not form grounds for dismissal under subsection. “c” clause 6, part 1, art. 81 Labor Code of the Russian Federation.

Mistake 3: failure to comply with the guarantees established by law in relation to specially protected categories of workers

In case of failure to comply with requirement No. 5 and the termination of the employment contract under sub. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation (this basis applies to dismissals at the initiative of the employer) with a pregnant woman (in the absence of exceptional circumstances listed in Part 1 of Article 261 of the Labor Code of the Russian Federation), the dismissal is declared illegal by the court in any case, even if the employer complies with all other requirements and the fact of disclosure by the employee of a secret protected by law has been proven.

Example from practice. A. filed a lawsuit against the LLC for reinstatement at work, indicating that she was fired under sub. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, in connection with “disclosure of a trade secret that became known to an employee in connection with the performance of his job duties.” The plaintiff considered her dismissal illegal, citing the fact that at the time of dismissal she was pregnant, which the employer knew about. In addition, on the day of dismissal, the plaintiff was incapacitated. The court found that the plaintiff was indeed pregnant at the time of her dismissal and was on sick leave. The employer’s argument that he was not officially notified by the plaintiff about the pregnancy and that, in his opinion, there was an abuse of rights on the part of the latter, the court rejected, since the provisions of the Labor Code of the Russian Federation do not provide for both the obligation and the form of warning by the employer’s employee about the occurrence of such a condition . Considering A.’s pregnancy at the date of dismissal (17–18 weeks), confirmed by a medical institution, which ended with the birth of two children, the court believed that the employer could not have been unaware of the employee’s pregnancy status. The case materials do not contain evidence that the plaintiff hid the pregnancy, thereby acting in bad faith. In this regard, the court had no reason to believe that A. abused her right. The court reinstated the plaintiff at work (decision of the Oktyabrsky District Court of Rostov-on-Don dated January 22, 2013; appeal ruling of the Rostov Regional Court dated May 20, 2013 in case No. 33-6120/2013).

Conclusion: dismissal under this article is impossible in relation to a specially protected category of workers.

Error 4: the existence of grounds for dismissal has not been proven

Information constituting a trade secret (production secret) is information of any nature (production, technical, economic, organizational and others), including the results of intellectual activity in the scientific and technical field, as well as information about the methods of carrying out professional activities that have actual or potential commercial value due to their unknownness to third parties, to which third parties do not have free access legally and in respect of which the owner of such information has introduced a trade secret regime.

In accordance with paragraph 9 of Art. 3 of the Federal Law of July 29, 2004 No. 98-FZ “On Trade Secrets” (hereinafter referred to as the Federal Law “On Trade Secrets”) disclosure of information constituting a trade secret is an action or inaction resulting in information constituting a trade secret in any possible form (oral, written, other form, including using technical means) becomes known to third parties without the consent of the owner of such information or contrary to an employment or civil law contract.

In the event of dismissal of an employee on the basis in question in the absence of one of the conditions expressly listed in subparagraph. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation (for example, if the disclosed information does not have signs of a secret protected by law, if the employer does not have a record of classifying a certain list of information as a commercial, official or other secret, etc.), it can be stated that the employer has not fulfilled requirement No. 1, that is, lack of evidence existence of grounds for dismissal. In such circumstances, dismissal under clause. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation cannot be recognized as legal and justified.

Example from practice. K. was fired under clause. "c" clause 6 of Art. 81 of the Labor Code of the Russian Federation, with which he did not agree, and filed a lawsuit to declare the dismissal illegal and to change the date and wording of the dismissal. The court found that the reason for the dismissal was the fact that the employer discovered that the plaintiff had received and sent correspondence using official email to outsiders of internal company documents containing information specified in the trade secret regulations as not subject to disclosure. During the consideration of this dispute, the court, at the request of the representative of the defendant, ordered a forensic computer-technical examination, according to the conclusion of which it was established that there were no reliable signs of sending letters from the address &...> to the address &...> &...> at the time indicated in these letters or later signs of imitation of such sending were detected. The technical possibility of sending these letters at a later date exists. Based on the examination data, the court came to the conclusion that the defendant did not provide evidence that at the time of the order to dismiss the plaintiff, the employer had reason to believe that the disclosed information that became known to the employee in connection with the performance of his job duties related to information , constituting a trade secret, and also that this information was disclosed specifically to K.

Since, according to the court, the employer has not proven that the plaintiff committed a disciplinary offense, giving the employer grounds for terminating the employment contract under subsection. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, the court declared the dismissal illegal (decision of the Kirovsky District Court of St. Petersburg dated January 21, 2014; determination of the St. Petersburg City Court dated May 27, 2014 No. 33-8038/2014).

Conclusion: failure to prove that the information related to information constituting a trade secret and was disclosed directly by a specific employee does not allow recognition of dismissal under subsection. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is legal.

In the absence of the above errors, when dismissing an employee under clause. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, the dismissal of an employee is legal.

What is disclosure of secrets and what is not?

It should be noted that in some cases, employers have difficulties in qualifying an employee’s actions as disclosure of information that constitutes a secret protected by law. We propose to use several examples to evaluate what and in what cases can be regarded by the employer as disclosure of a secret protected by law, for which the employer subsequently has the right to dismiss the employee under clause. “c” clause 6, part 1, art. 81 Labor Code of the Russian Federation.

Incorrect storage of confidential information also leads to disclosure.

Practice. The employee filed a lawsuit against the employer bank to declare the order of dismissal and reinstatement illegal. In support of the claim, she indicated that the dismissal was based on the rules. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is considered illegal, since there is no fact of disclosure of secrets protected by law on her part. In checking the legality of the plaintiff’s dismissal, the court found that the bank’s client had received information that there was documentation belonging to the bank in a garbage container located next to the office. As a result of the inspection of the container and the surrounding area, sets of documents with stamps and seals of the bank’s additional office were discovered, containing information about transactions, accounts and deposits of bank clients, their personal data, which was a bank secret, as well as confidential data of bank clients. Based on the results of an internal audit conducted by the bank, it was established that on the specified day, before the start of the working day, the cleaner, in the course of performing her work duties, mistakenly took into the trash container a box with contracts for banking services, located under the table in the operating area, which served as the workplace of the plaintiff, acting manager additional office while the head of the office L was on vacation. Studying internal regulations, job descriptions, texts of employment contracts and obligations on non-disclosure of banking and other secrets, the court came to the conclusion that the plaintiff was aware of the procedure for storing confidential documents, since other boxes with similar documents were stored in a closed internal room of the operating area of ​​the additional office, where access was limited. Thus, the court came to the conclusion that the disclosure of bank secrets and confidential customer data occurred as a result of the plaintiff’s violation of her official duties, namely the failure to exercise control over: employees’ compliance with the requirements of the bank’s internal instructions, over the storage of documents in separate premises closed at key for the destruction of documents containing personal data of clients. Based on the above findings, the court rejected the plaintiff’s claim (decision of the Gagarinsky District Court of Moscow dated November 21, 2013; appeal ruling of the Moscow City Court dated April 4, 2014 in case No. 33-8411).

Conclusion: dismissal under clause “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is lawful due to the assumption of disclosure of information constituting a secret protected by law, which became possible due to improper storage of documents containing confidential information.

The company’s price list can also become a secret.

In accordance with Art. 3 of the Federal Law “On Trade Secrets”, a trade secret is a regime of confidentiality of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market for goods, works, services, or obtain other commercial benefits.

Based on the provisions of the article, it is impossible to make an unambiguous conclusion about what can be classified by the employer and what cannot. A guideline in this matter can be Art. 5 of the Federal Law “On Trade Secrets” and Decree of the Government of the RSFSR dated December 5, 1991 No. 35 “On the list of information that cannot constitute a trade secret,” introducing a ban on classifying a certain list of information. However, the guideline does not fully answer the question posed. As practice shows, even... the price list of an enterprise can become confidential information (or simply a commercial, that is, a secret protected by law).

Practice. In a dispute about challenging dismissal under sub. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, the court found that information on prices for equipment constituted a secret. This information was disclosed in a letter sent by the plaintiff-employee on company letterhead and with details to LLC “***”. In response to the court's request, LLC "***" reported that for 7 years (!) employees of LLC "***" had been sending requests for price information for equipment. Correspondence with the plaintiff was conducted over the specified period of time; in commercial proposals (responses to requests), the plaintiff signed as an official of the defendant. At the same time, LLC “***” also presented a letter from the plaintiff, which served as the basis for his dismissal from his position, in which the plaintiff reported the cost of equipment produced by the company, the cost of installation and commissioning, and the cost of delivery of equipment to Novosibirsk. The plaintiff’s arguments that the specified information is not commercial information, since it is freely available and posted, including on the Internet, were found by the court to be unfounded, since they are not supported by anything, since the specifications presented by the plaintiff do not indicate that they are posted on the official website on the Internet, and the publication of any specifications for similar products by other legal entities has no legal significance in this case. The plaintiff’s arguments that he had the information he was charged with disclosing before concluding an employment contract with the defendant also had no legal significance for the court in resolving this dispute, since, having concluded an employment contract with the defendant, the plaintiff undertook not to disclose information related to commercial secrets of the Company that became known to him in connection with the performance of his job duties (decision of the Presnensky District Court of Moscow dated October 21, 2013; appeal ruling of the Moscow City Court dated March 18, 2014 in case No. 33-7855).

Conclusion: The law provides the employer with fairly broad rights to classify its own information. If there are no contradictions with the requirements of the law, even very obvious information may become a secret for third parties.

Photos on the Internet can also reveal secrets.

According to paragraphs. 1–3 tbsp. 13 of the Federal Law of November 21, 2011 No. 323-FZ “On the fundamentals of protecting the health of citizens in the Russian Federation” (hereinafter referred to as the Federal Law “On the fundamentals of protecting the health of citizens in the Russian Federation”) information about the fact of a citizen applying for medical care, his state of health and diagnosis , other information obtained during his medical examination and treatment constitutes medical confidentiality. Disclosure of information constituting medical confidentiality, including after the death of a person, is not permitted by persons to whom they became known during training, performance of labor, official, official and other duties, except for the cases established by Part. 3 and 4 of the same article. With the written consent of a citizen or his legal representative, it is permitted to disclose information constituting medical confidentiality to other citizens, including officials, for the purposes of medical examination and treatment of the patient, conducting scientific research, their publication in scientific publications, use in the educational process and other purposes (Part 3 of Article 13 of the Federal Law “On the fundamentals of protecting the health of citizens in the Russian Federation”).

An exhaustive list of cases when it is permissible to provide information constituting medical confidentiality without the consent of a citizen or his legal representative is listed in paragraph 4 of Art. 13 of the same law. The law does not provide for other cases. However, as practice shows, some medical workers misinterpret the concept of medical confidentiality and their obligation to not disclose it. The court agrees with the correctness of the conclusions of the employer who applies the grounds for dismissal provided for in subsection in relation to such employees. “c” clause 6, part 1, art. 81 Labor Code of the Russian Federation.

Practice. The nurse was fired for disclosing official secrets, which resulted in her posting photographs of her workplace – the department’s ward – on her page on the social network VKontakte. However, the employee did not agree with the wording of the grounds for dismissal, since she believed that by posting these photographs on the Internet, she was not disseminating official secrets, since she did not indicate the personal data of the patients. Moreover, when she posted the photographs, she did not expect that her actions would have such a resonance, and that there would also be negative consequences in the form of written appeals from the patients’ relatives. He believes that it is impossible to identify patients from the images in the photographs. Taking into account the clarifications of the claim, she asked to change the wording of the dismissal to dismissal at her own request. The court examined all documents drawn up between the parties and prescribing medical confidentiality. In addition, the court also examined the code of ethics for nurses in Russia, approved by the All-Russian public organization “Association of Nurses of Russia” in 2010, which provides for the duty of a nurse to strictly perform her functions to protect confidential information about patients, in whatever form it is stored; and the right of a nurse to disclose confidential information about a patient to any third party only with the consent of the patient. According to this code, the use of photography and video by a nurse is possible only for scientific and educational purposes and only with the consent of the patient.

Meanwhile, the plaintiff, while at her workplace, in the intensive care unit of the hospital, took photographs of the room and the two unconscious patients in it, calling them “Work Environment,” on her page on the VKontakte social network. The next day, one of the Internet users, who was the daughter of the photographed patient and recognized her mother in the photo, reported this to the chief physician of the hospital. The employer conducted an inspection that confirmed this fact. The photographs posted by the plaintiff on the Internet make it possible to accurately determine the location of the patients, as well as their physical condition. These photographs were taken by the plaintiff while she was at her workplace during the direct performance of her work duties. The entry of outsiders into the intensive care unit is prohibited, visiting is not free, therefore, the plaintiff had the opportunity to photograph the ward only in connection with the implementation of her professional activities related to the provision of medical care to patients of the department of which she was an employee. The plaintiff knew that the citizens depicted in the photographs were patients of the department and needed medical care due to the characteristics of their physical condition. Moreover, in the intensive care unit there are patients whose condition is at the highest level of risk, those most in need of care and intensive treatment, and care from medical personnel.

As the court indicated in its decision, when concluding an employment contract with the defendant, the plaintiff undertook not to disclose information constituting medical confidentiality. The court correctly established that information about the location of the patients depicted in the photographs posted by the plaintiff on the Internet, being treated in the intensive care unit, their physical condition certainly constitutes a medical secret, which became known to the plaintiff during the performance of her direct work duties. Moreover, the images were taken during working hours directly in the intensive care unit. The fact of dissemination of information is confirmed by the presented excerpts from the Internet, from newspapers, as well as an appeal from the daughter of one of the patients, who recognized her mother in the photograph posted by the plaintiff. Taking into account the evidence presented in the case, the court came to the conclusion that the dismissal of the plaintiff on the disputed grounds was legal and the claim to change the wording of the grounds for dismissal was denied to the plaintiff (decision of the Oktyabrsky District Court of the city of Omsk dated December 3, 2013; appeal ruling of the Omsk Regional Court dated February 12, 2014 to case No. 33-649/2014).

Conclusion: a photo, even without indicating its owner, posted in the public domain, can also constitute disclosure of information.

The basis for dismissal also forms the disclosure of information that is temporarily protected by law and loses this status after a certain time.

Practice. The employee filed a lawsuit to challenge his dismissal under sub. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation for disclosing secrets protected by law. The court found that during the investigation into the disclosure of a legally protected secret by a commission created by the employer, it was established that the plaintiff had disclosed a commercial or other secret by sending it to external email addresses (the plaintiff’s personal email account and his wife’s personal email account) on September 20, 2013 at 1:29 p.m. min. files containing information about the defendant's new insurance products that are not publicly available. From the plaintiff’s explanations it followed that the above package of documents was indeed sent by him to external email addresses in connection with the official need to provide himself with the opportunity to present the company’s products and services to potential partners of the employer. He could not save them to a USB flash memory for the same purpose, since the USB inputs of his work computer were faulty and the flash drives burned out. Also, the plaintiff did not consider the sent information to be secret, since the company was still obliged to publish it in the public domain. However, the court refused to satisfy the demands to declare illegal and cancel the order of dismissal and reinstatement of the plaintiff, since the fact of disclosure by the plaintiff of information classified by law and the internal labor regulations of the defendant as a trade secret was confirmed by appropriate evidence. The fact that the information subsequently sent by the plaintiff lost the status of a trade secret for the resolution of the case was no longer significant, since at the time of disclosure the specified information was still a secret (appeal ruling of the Moscow City Court dated January 28, 2014 in case No. 33-5570/14).

Conclusion: dismissal under clause “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is also lawful in the event that information was disclosed that was a secret at the time of disclosure, even if later the same information lost this status.

Disclosure may also include the provision of information... to the President of the Russian Federation

As mentioned above, according to Part 1 of Art. 13 of the Federal Law “On the Fundamentals of Protecting the Health of Citizens in the Russian Federation”, information about the fact that a citizen applied for medical care, about his state of health and diagnosis, and other information obtained during his medical examination and treatment constitutes a medical secret. In accordance with clause 4 of the List of confidential information, approved by Decree of the President of the Russian Federation of 03/06/1997 No. 188 “On approval of the List of confidential information,” medical confidentiality refers to information related to professional activities, access to which is limited in accordance with the Constitution of the Russian Federation and federal laws.

By virtue of Part 2 of Art. 13 of the Federal Law “On the fundamentals of protecting the health of citizens in the Russian Federation”, the disclosure of information constituting a medical secret, including after the death of a person, is not allowed by persons to whom they became known during training, performance of labor, official, official and other duties, except for cases established by parts 3 and 4 of this article.

In Part 4 of Art. 13 of the Federal Law “On the Fundamentals of Protecting the Health of Citizens in the Russian Federation” contains an exhaustive list of grounds on which it is permissible to provide information constituting medical confidentiality without the consent of the citizen or his legal representative. Providing information even to the first person of the state is not included in this list.

Practice. Due to a conflict between an employee and an employer, the employee decided to write a letter to the President of the Russian Federation, talking about numerous violations committed at the employer’s enterprise - in a medical institution, attaching copies of medical records of patients of this medical institution. After receiving information about her appeal to the reception office of the President of the Russian Federation, the employer created a commission to consider the circumstances of violation of the provisions of the Federal Law “On the Fundamentals of Protecting the Health of Citizens in the Russian Federation.” Based on the results of consideration by the employer's order, the employee was dismissed on the basis of subsection. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation in connection with the disclosure of secrets protected by law.

Having filed a corresponding claim in court, the employee indicated that in relation to patients B.M.A. and L.V.N., copies of whose medical records she attached to her appeal to the President of the Russian Federation, she was not the attending physician, therefore she cannot be the subject of a disciplinary offense under subsection. “c” clause 6, part 1, art. 81 Labor Code of the Russian Federation. In addition, the plaintiff believed that the obligation to not disclose medical confidentiality should be specified separately either in the employment contract or in the job description, which was not the case in the documents between her and the employer.

The court, with reference to regulations, indicated that the obligation of non-disclosure of medical confidentiality is contained in the doctor’s oath. At the time the plaintiff received a doctor’s diploma, the current regulations of the Russian Federation established that the fact of taking the doctor’s oath was certified by a personal signature under the corresponding mark in the doctor’s diploma indicating the date. As can be seen from the case, the diploma issued in the name of the plaintiff certified the fact of her taking the oath of a doctor. Thus, the plaintiff’s receipt of a diploma is a fact of conveying to her, as a doctor, the obligations of non-disclosure of medical confidentiality. In addition, the court established that the plaintiff had forged the patients’ consent to provide their data to the President of the Russian Federation. The President of the Russian Federation is not the body for monitoring the quality of medical services, and therefore the fact and procedure for providing him with information constituting medical confidentiality does not fall under the requirements of regulations on the obligation of the owner of information to provide such information to authorities.

Thus, the court correctly concluded that the plaintiff disseminated information containing medical confidentiality regarding two patients without their consent. The court also did not agree with the plaintiff’s argument that this obligation applies only to those patients whom the doctor directly supervises, pointing out that the information she transmitted became known to her in connection with the performance of her job duties. Based on the above, the court recognized the dismissal as legal and rejected the employee’s claim (decision of the Sovetsky District Court of Orel dated October 1, 2013; appeal ruling of the Oryol Regional Court dated November 28, 2013 in case No. 33-2608/2013).

Conclusion: Not every government body can be provided with information that constitutes a secret protected by law “with impunity.” In some cases, this is recognized as a disclosure of secrets and forms the basis for dismissal provided for in subsection. “c” clause 6, part 1, art. 81 Labor Code of the Russian Federation.

Disclosure is also inaction in the form of absence of interference in access to a personal password from a computer

As you know, many enterprises have not only local acts dedicated to the protection of commercial and other secrets, but also developed methods and requirements for employee behavior designed to prevent information leakage. This also applies to cases where information leakage can occur without the active participation of the employee. For example, if an employee does not block access to his computer (and therefore the network) in his absence. Such behavior, according to the courts, can also be regarded as disclosure in the form of inaction, and be the basis for the dismissal of an employee under subsection. “c” clause 6, part 1, art. 81 Labor Code of the Russian Federation.

Practice. Sh. filed a lawsuit against the employer and asked to declare the dismissal order illegal for disclosing a secret protected by law and to reinstate her at work.

As the court found, the reason for the dismissal of the plaintiff was the results of an inspection, which found that Sh. had violated his official duties, the Regulations “On the regime of confidentiality of information in JSC “***”, the Methodological Instructions on Information Security, the Internal Labor Regulations, according to which The plaintiff was obliged not to disclose (not transfer to third parties in any way, volume, form) or communicate information constituting an official or commercial secret of the company, including access passwords to the corporate information network and other programs. At the same time, she was obliged, when leaving her workplace, even for a short time, to block access to a working computer by pressing the Ctrl-Alt-Del keys and selecting the “Block computer” item in the menu. The audit found that in the defendant’s office, where the plaintiff worked, under her account, an unidentified employee replaced the SIM card to which the bank card was linked to a citizen for whom it was not issued, as a result of which, using this SIM card, card, an amount of ** rubles was debited from the client’s account. According to Sh.’s explanations, all employees who worked on the day of the incident had access to her computer. The court, taking into account that the disclosure of Sh.’s trade secret was carried out in the form of inaction, by allowing a third party to access the computer with the login performed, which ended in negative consequences for the employer’s client, came to the conclusion that the employee refused to satisfy the stated claims (decision Tagansky District Court of Moscow dated December 3, 2012; appeal ruling of the Moscow City Court dated February 18, 2013 No. 11-5312/2013).

Conclusion: An employee’s negligent attitude towards his responsibilities for protecting access to his work computer may result in lawful dismissal under subclause. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation for the disclosure of information constituting a secret protected by law.

Analyzing the practice presented in the article and summarizing the conclusions drawn in it, we can state the following:

1. The employer has the right to classify any information, with the exception of information legally included in the list, which cannot constitute a secret.
2. Classification of information must be presented in officially documented form. To do this, as a rule, it is necessary to adopt a local act at the enterprise and familiarize all employees with it.
3. Classified information must be clearly and clearly listed, and not indicated in a vague form, such as, for example, “everything related to the activities of the enterprise is a trade secret.”
4. The employee’s obligation to store and not disclose information that constitutes a secret protected by law must be documented. The employee must not only be familiar with such an obligation, but also confirm the obligations undertaken with his signature, for example, in a non-disclosure obligation in an employment contract.
5. Disclosure of information constituting a trade secret is an action or inaction as a result of which information constituting a trade and other secret, in any possible form (oral, written, other form, including using technical means), becomes known to third parties without the consent of the owner such information or contrary to an employment or civil law contract. The practice presented in the article will help the employer determine whether the employee’s action is correctly classified as a disclosure of a secret protected by law.
6. In the absence of errors in the application of the grounds for dismissal provided for in subsection. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, dismissal is legal and justified.

Types of employee responsibility for the dissemination of information protected by law.

Every day, thousands of commercial organizations are faced with the need to protect confidential information.
Thus, among the most common types of information protected by law are:
– personal data (Federal Law “On Personal Data”);
– trade secret (Federal Law “On Trade Secrets”).

In this material I will talk about the responsibility of employees who allowed the dissemination of confidential information in favor of third parties.
Current legislation provides for 4 types of liability for employees who committed the offense in question.
– disciplinary liability: reprimand, reprimand, dismissal (clause “c”, clause 6, part 1, article 81 of the Labor Code of the Russian Federation);
– financial liability: compensation for damage caused (Article 238 of the Labor Code of the Russian Federation);
– administrative liability: fine up to 5000 ();
– criminal liability: fine up to 200,000, forced labor, imprisonment for up to 5 years ().

Of greatest interest is bringing an employee to disciplinary liability in the form of dismissal under paragraphs. “c”, clause 6, part 1, art. 81 of the Labor Code of the Russian Federation.
The structure of legal disputes challenging the decision to dismiss an employee under paragraphs. “c”, clause 6, part 1, art. 81 of the Labor Code of the Russian Federation.

Paragraph 43 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004 determined that if an employee challenges dismissal under subparagraph “c” of paragraph 6 of part one of Article 81 of the Code, the employer is obliged to provide evidence indicating that
- the information that the employee disclosed, in accordance with current legislation, relates to state, official, commercial or other secrets protected by law, or to the personal data of another employee (1) ,
- this information became known to the employee in connection with the performance of his job duties (2),
- and he undertook not to disclose such information (3) .

Thus, the burden of proving the legality of dismissal lies with the employer, and the subject of proof consists of 3 elements:

1. disseminated information is a secret protected by law;
2. information/information received in connection with the performance of official duties;
3. the employee was obliged not to disclose a protected secret.

Let us consider cases of dismissal of employees encountered in judicial practice under paragraphs. “c”, clause 6, part 1, art. 81 Labor Code of the Russian Federation.

1.Dismissal of an employee for disseminating confidential information by sending emails
Source : Ruling of the Moscow City Court dated October 20, 2014 in case No. 4g/9-9007/2014
The employee sent documents with confidential information to external personal addresses: a personal email address on an external server and the email address of his wife.

Frequently asked question: Why is sending to a personal email address recognized by the courts as dissemination of information for the benefit of third parties?
Answer:“User Agreement” for all services that provide free email addresses (mail. ru, yandx.ru, google. cometc.) provides a similar formulation:
“The User grants Mail.Ru a non-exclusive license to use, including reproduction, distribution, processing, public display and making available to the public, materials posted by the User within the Internet service for public viewing as Mail.Ru content.”

2. Assignment of corrective labor for disseminating confidential information by sending messages by e-mail
Source: Verdict of the Gagarinsky District Court of Moscow dated June 4, 2013 in case No. 1-160/2013
A criminal case has been initiated against the employee who sent confidential information to the counterparty’s email address.
The employee was sentenced to 1 year and 9 months of correctional labor in places determined by local authorities in agreement with the criminal-executive inspection in the area of ​​residence of the convicted person, with 15% withheld from earnings monthly to the state income.

3. Dismissal of an employee for transferring an access password to software containing confidential information
Source: Ruling of the Moscow City Court dated October 16, 2014 in case No. 33-35077/2014
An employee transferred the password for his account in a utility program containing various confidential information to third parties. While the employee was in the office in Moscow, the program was entered from the Moscow region.
The employee was dismissed under paragraphs. “c”, clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, the dismissal was recognized by the court as legal.

4. Dismissal of an employee for disclosing confidential information via Skype
Source: Decision of the Golovinsky District Court of Moscow dated October 8, 2013 in case No. 2-5055/13
The employee forwarded documents and information to third parties via Skype. The program was installed on a company computer for work purposes and the employer was able to track this fact.
The employee was dismissed under paragraphs. “c”, clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, the dismissal was recognized by the court as legal.

5. Dismissal of an employee for improper storage and disposal of confidential information
Source: Determination of the Moscow City Court dated August 19, 2014 N 4g8-7847
Documents containing confidential information were found in trash cans near a bank branch. As part of the internal audit, it was established that the documents were thrown away by the cleaning lady, and the reason for this violation was the improper storage of confidential documents. Considering that the documents were already in the trash cans, the employer additionally pointed out the fact of improper disposal of confidential information.
The employee was dismissed under paragraphs. “c”, clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, the dismissal was recognized by the court as legal.

6. Dismissal of an employee for saving information on a USB drive + e-mail

Then the Chief Burzhuin frowned and said:
- So, bourgeois, give this secretive Malchish-Kibalchish the most terrible torment that there is in the world, and extract the Secret from him, because we will have neither life nor peace without this important Secret.
The bourgeoisie left, but now they will not return soon. They walk and shake their heads.
“No,” they say, “our boss is Chief Burzhuin.” He stood pale, Boy, but proud, and he did not tell us the Secret, because he had such a firm word.

A.P. Gaidar. A tale about a military secret, about Malchish-Kibalchish and his firm word

What a time, so are its ideals. Malchish-Kibalchish died, but did not reveal the secret to the damned bourgeois. But in our modern life, more and more Bad Boys come across. Not only are they ready to give away all their employer’s commercial secrets “for a barrel of jam and a basket of cookies,” but they can also divulge them just like that. How can we make sure that this doesn’t happen or, if it does happen, that the culprit doesn’t escape responsibility and be dismissed in disgrace? Read more about this.

Let's learn the materiel: the legal framework for dismissal for disclosing trade secrets

First of all, some boring legislation.
For disclosing a trade secret one is fired under clause “c” of Part 6 of Art. 81 of the Labor Code of the Russian Federation. To be dismissed, it is enough to commit this disciplinary offense at least once.
The legal regulation of the trade secret regime is defined in the Federal Law of July 29, 2004 N 98-FZ “On Trade Secrets”. It defines a trade secret as a regime of confidentiality of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market for goods, works, services, or obtain other commercial benefits. The requirements for the protection of trade secrets by the employer are defined in Art. 10 of this Law. An employer who owns a trade secret must:
- determine in the form of a list what information will constitute a trade secret;
- limit access to such information by establishing, firstly, the procedure for handling it, and secondly, methods and means of monitoring compliance with this procedure;
- take into account employees who have access to trade secrets;
- introduce into the employment contracts of the relevant employees provisions on the observance of trade secrets and familiarization with the list of information constituting a trade secret;
- mark information containing a trade secret with the stamp “Trade Secret”, indicating its owner.

How not to fire: mistakes when dismissing for disclosing trade secrets

Judicial practice on dismissal for disclosure of trade secrets is summarized in paragraph 43 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.” In order to win the case, the employer must present the following types of evidence to the domestic judicial system.
Firstly, that the information disclosed by the employee really constitutes a trade secret.
Secondly, the fact that the employee became aware of “secret” information in the course of performing his job duties.
Thirdly, that the employee has undertaken an obligation not to disclose this information.
Mistakes made by employers when forming the legislative framework, accordingly, consist in non-compliance with these provisions.

The first mistake is that the disclosed information is not a trade secret.

"A secret shared by two is no longer a secret." This catchphrase from “Seventeen Moments of Spring” is familiar to many. It follows that if a trade secret is known to an indefinite number of people, for example, by placing “secret” information in the public domain, then it is not a trade secret. So, for example, the judicial panel took into account that OJSC<...>there is a website where information about interest rates on credit products is posted, while in accordance with the act of official use this information is classified as a trade secret, and satisfied the claim for the reinstatement of the dismissed employee at work (Appeal ruling of the Sverdlovsk Regional Court dated 03/11/2016 in case N 33-3646/2016).
A common mistake made by employers is the lack of “trade secret” stamps on classified information. The panel of judges considered the correct conclusion of the court that the absence of the stamp “trade secret” on the documents indicating the owner of this information is grounds to believe that in relation to the documents, the disclosure of the contents of which the employer charged the plaintiff with, the trade secret regime was not violated (Appeal ruling of the St. Petersburg City Court dated June 23, 2015 in case No. 33-10630/2015).
An employer has every chance of losing the case if an employee at his enterprise is familiar with the need to maintain trade secrets, but there is no list of information constituting a trade secret (Appeal ruling of the Moscow City Court dated October 26, 2012 in case No. 11-24176/2012).
There is publicly available information that, in accordance with the law, cannot be “classified”. The following example from judicial practice seems interesting here.

Arbitrage practice. S.V.O. appealed to the Vasileostrovsky District Court of St. Petersburg with a claim against LLC "***", asking to recognize the order of dismissal for disclosing a trade secret as illegal.
By decision of the Vasileostrovsky District Court of St. Petersburg dated March 23, 2017, the claim was rejected.
In the appeal S.V.O. asked the court of first instance to cancel the decision as illegal and unfounded.
Having discussed the arguments of the appeal and studied the case materials, the judicial panel came to the following conclusion.
When hiring<дата>S.V.O. an obligation of non-disclosure of trade secrets and the list of information constituting a trade secret was signed.
The plaintiff also signed a list of information constituting a trade secret, according to which the trade secret, in particular, includes: information about the wages of the company’s employees.
The General Director of LLC "***" received a memo from mechanic P.V.K., which indicated a violation of the S.V.O. commercial secret of the enterprise, namely that S.V.O. on the indicated day, near the Marine Facade, I spoke with drivers of a third-party organization to discuss and express dissatisfaction with the working conditions at LLC "***"...
It should be borne in mind that not all information that the employer considers a trade secret may be such.
In accordance with Art. 5 of the Federal Law “On Trade Secrets”, a trade secret regime cannot be established by persons engaged in entrepreneurial activities in relation to the following information: about the remuneration system, about working conditions.
Thus, the plaintiff’s conversations with other drivers about the wage system, working conditions, dissatisfaction with the size of his own wages are not a trade secret (Appeal ruling of the St. Petersburg City Court dated June 28, 2017 N 33-13478/2017 in case N 2-707 /2017).

Mistake two - there is no evidence that the employee has undertaken not to disclose trade secrets

As noted above, the employment contract must contain the employee’s obligations regarding non-disclosure of trade secrets. In this case, in court it will be necessary to provide evidence that the employee has familiarized himself with the list of information constituting a trade secret. Otherwise, the employee will have to be reinstated (Appeal ruling of the Moscow City Court dated June 22, 2016 in case No. 33-21668/2016).

Error three - the fact of transfer of “secret” information to third parties has not been proven

The obligation to prove in court the facts of transfer of information constituting a trade secret to third parties falls on the employer. The following category of cases is of interest.
In labor practice, it often happens that an employee did not have time to complete something in the office. But I don’t want to stay too long at work; I’m drawn to the warmth of home. In this case, the information necessary for work is copied to a flash card, sent to your email address, etc. And in the end it turns out that “we wanted the best, but it turned out as always.” Because if the information is a trade secret, then this “workaholic” may be fired for disclosing it.
In judicial practice on this issue, two completely opposite positions are presented.
In accordance with the first, cases are decided in favor of dismissed workers, since there is no evidence that the copied information was provided to third parties. So, for example, in accordance with the Determination of the Moscow City Court dated November 16, 2011 in case No. 33-33814, claims for declaring the dismissal illegal, changing the wording of the dismissal, collecting wages, and compensation for moral damages were rightfully partially satisfied, since there was evidence that the information, contained in the documents sent by email by the plaintiff became known to third parties and was not presented by the defendant.
The second position is the solution of this category of cases in favor of employers.

Arbitrage practice. K. filed a lawsuit against LLC KB "***" for recognition of order N<*>dated 12/04/2015 regarding illegal dismissal. The court of first instance rejected the claim. K. filed an appeal against the court decision.
On appeal, the judicial panel made the following decision.
As established by the court, K. was hired by LLC KB "***".
On November 1, 2015, K. signed an agreement on non-disclosure of restricted access information, according to which the plaintiff agrees not to violate the rules established by the Bank aimed at protecting and preserving restricted access information.
According to the Rules for ensuring information security when working with information resources of LLC KB "***", the user of the information resource is strictly prohibited from sending information to personal email addresses, and sending such information is equivalent to disclosure (clause 6.5).
From the case materials it follows that on November 17, 2015, in the period from 11:40 to 17:43, the plaintiff transferred the above files to an external “cloud” file storage “***”, the user of which was the plaintiff.
Under such circumstances, the judicial panel believes that the decision of the first instance court is legal and cannot be canceled (Appeal ruling of the Moscow City Court dated March 30, 2017 in case No. 33-12211/2017).

In some cases, courts also note that when sending information by email, it automatically becomes available to the mail server (Yandex, Rambler, etc.), and therefore to third parties (Appeal ruling of the Moscow City Court dated 09/08/2014 in case N 33-18661/2014).
Thus, the employer should include in the Regulations on the Protection of Trade Secrets the conditions that the relevant information is prohibited from being copied onto personal media and sent even to oneself. And the Supreme Court of Russia should make appropriate clarifications, which will resolve this legislative conflict.

Mistake four - the dismissal procedure was not followed

And finally, when dismissing an employee who does not know how to keep a trade secret, you should strictly follow the dismissal procedure prescribed in the Labor Code of the Russian Federation. Otherwise, after he applies for legal protection, he will have to admit his mistake and reinstate the dismissed employee at work.

Arbitrage practice. CHALK.<...>filed a claim with the State Administration<...>on recognition of the dismissal order as illegal and reinstatement.
By order of the defendant dated<...>was fired for disclosing trade secrets.
By the decision of the Serovsky District Court of the Sverdlovsk Region dated April 24, 2015, the claims were satisfied.
The defendant did not agree with this decision and filed an appeal against it.
Having studied the materials of the case, the judicial panel did not find any grounds for canceling the appealed court decision due to the following.
The court of first instance established that the actions of the plaintiff, qualified by the defendant as a disciplinary offense, took place in 2013.
The plaintiff was brought to disciplinary liability in the form of dismissal by order of the defendant from<...>N<*>, with which the plaintiff was familiarized with signature<...>.
By virtue of Part 4 of Art. 193 of the Labor Code of the Russian Federation, disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission.
The panel of judges agrees with the conclusion of the court of first instance that the six-month period from the date of commission of the disciplinary offense expired long before the date the plaintiff was actually brought to disciplinary liability.
The judicial panel rejects the arguments of the appeal that the inspection carried out by the defendant was an audit, an inspection of the financial and economic activities of the department, since taking into account the nature of the inspection, the circumstances to be established and established as a result of the inspection, the subject of the inspection cannot be attributed, contrary to arguments of the defendant's appeal, to an audit or verification of the financial and economic activities of the department. This argument was given a proper assessment by the court of first instance (Appeal ruling of the Sverdlovsk Regional Court dated July 24, 2015 in case No. 33-10383/2015).

How to properly fire a “godsend for spies”?

So, to ensure that the dismissal of an employee who cannot keep a secret is not challenged in court, the following is necessary.
Firstly, include provisions on the observance of trade secrets in employee employment contracts, determine in writing a list of information to be protected, labeling it “trade secret”, develop a Regulation on the protection of trade secrets, and also familiarize employees with this list and the Regulations under painting. It is especially important to include in internal documents a ban on sending information to your email address and copying it onto your own storage media.
Secondly, provide the court with irrefutable evidence that the information was transferred to third parties.
Thirdly, the procedural procedure for dismissal must be strictly followed.

If an employee discloses a trade secret or damages the company’s intellectual capital during the period of the employment contract, he may be subject to disciplinary action. For disclosure of confidential information, the Labor Code of the Russian Federation provides for the possibility of terminating an employment contract. We'll tell you how to fire a talkative employee.

Judicial practice: what to pay attention to

An employment contract can be terminated by the employer in the event of a one-time gross violation by the employee of labor duties: disclosure of a secret protected by law (state, commercial, official, etc.), which became known to the employee in connection with the performance of his labor duties, including disclosure of personal data of another employee (clause "c" clause 6, part 1, article 81 of the Labor Code of the Russian Federation).

What is covered by disclosure? In accordance with paragraph 9 of Art. 3 of the Federal Law of July 29, 2004 N 98-FZ “On Trade Secrets” (hereinafter referred to as Law N 98-FZ) are actions or inactions that result in information constituting a trade secret in any possible form (oral, written, using technical means) becomes known to third parties without the consent of the owner of such information or contrary to an employment or civil law contract.

If an employee challenges dismissal on this basis, the employer is obliged to provide evidence that the information disclosed by the employee, firstly, relates to a secret protected by law, secondly, became known to him in connection with the performance of his job duties and, thirdly , the employee undertook not to disclose them. The Plenum of the Supreme Court of the Russian Federation insists on this in paragraph 43 of Resolution No. 2 of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution of the Plenum No. 2).

Thus, dismissal on this basis can be considered lawful if the following conditions are met:

— the obligation not to disclose secrets is expressly provided for in the employment contract with the employee;

— the employment contract or annex to it specifies exactly what information containing a commercial or other secret protected by law the employee undertakes not to disclose;

- a secret protected by law was entrusted (became known) to the employee in connection with the performance of his labor function;

— information that, in accordance with the employment contract, the employee undertakes not to disclose, according to the current legislation, can be classified as information constituting a commercial and other secret protected by law.

If these facts are proven in court, the courts take the employer’s side, which is confirmed by judicial practice.

Arbitrage practice. During an internal audit, it was established that the employee had access to information protected by the trade secret regime and committed violations of this regime: repeatedly using a personal computer, she copied files containing confidential information onto a personal flash card, transmitted information about her by e-mail to third parties. the volume of work planned by the customer and its cost. The court concluded that the employer had grounds for dismissing the plaintiff in connection with the disclosure of a legally protected trade secret (Appeal ruling of the Moscow City Court dated October 8, 2013 in case No. 11-33789).

As noted above, the disclosure of information constituting a trade secret can result in both action and inaction of employees. Let us give an example of an employee’s inaction, which resulted in the disclosure of confidential information.

Arbitrage practice. The reason for the plaintiff’s dismissal was the results of an inspection, which established that the employee had violated her job duties. The regulation on the confidentiality of information established the obligation of the plaintiff, when leaving her workplace even for a short time, to block access to a working computer by pressing the Ctrl-Alt-Delete keys and selecting the “Block computer” item in the menu.

As a result of the fact that these actions were not performed by the employee, actions were carried out under her account by an unidentified employee that caused damage to the organization’s client. Thus, there was a disclosure of trade secrets in the form of inaction, namely by allowing a third party to access the computer and log into the system. The court rejected the employee’s claim for reinstatement at work (Determination of the Moscow City Court dated September 23, 2013 No. 4g/8-7616).

The situation seems difficult when employees copy information that constitutes a trade secret onto external media. Judicial practice on such disputes varies.

Arbitrage practice. The Kemerovo Regional Court, when considering an employee’s claim to appeal a disciplinary sanction, noted that the employee, in violation of the requirements of the employer’s local regulations, having access to information constituting the employer’s trade secret, violated the established trade secret regime, made unauthorized copying of information constituting the defendant’s trade secret to his personal removable USB drive (Determination of the Kemerovo Regional Court dated June 29, 2012 in case No. 33-6243-2012).

Arbitrage practice. The court came to the conclusion that the information copied by the employee onto a flash card constituted a trade secret of the company, however, the defendant did not provide evidence that this information was transferred to third parties; the plaintiff denies committing such actions. The court was also not presented with evidence of the plaintiff sending the specified information to the electronic mailboxes of third parties, as well as facts of posting on the Internet. When inspecting the plaintiff’s home computer and deleting the copied information from it, the defendant did not record any such facts; there were no notes about this in the information deletion act. Thus, the mere fact of a company employee copying information constituting a trade secret onto his own flash card without evidence of subsequent transfer of this information to third parties cannot be regarded as disclosure of this information (Determination of the Moscow City Court dated December 12, 2011 in case No. 4g /8-10961/2011).

Probably, the court takes into account the evidence collected in the case about the employee’s intentions, as well as the content of the employer’s local regulations that establish or do not establish a ban on copying information to external media.

Often employees do not copy information, but simply forward it to themselves - from a corporate mailbox to a personal one registered on one of the free services. On the one hand, sending information to yourself can hardly indicate providing access to trade secrets to third parties. Although here the following must be taken into account. When forwarding mail from corporate mail to his mailbox, an employee allows the disclosure of confidential information to at least one third party - the postal agent. Let's look at this situation using an example (example 1).

Example 1. In the Mail user agreement. Ru states that the company “reserves the right, at its sole discretion, to change (moderate) or delete any information published by the User<…>, including private messages and comments, suspend, restrict or terminate access to any Mail services. Ru at any time for any reason or without explanation, with or without prior notice, without liability for any harm that may be caused to the User by such action." Therefore Mail. Ru becomes the owner of information sent by users through the mail mailbox. ru (Article 2 of the Federal Law of July 27, 2006 N 149-FZ “On information, information technologies and information protection”).

As judicial practice shows, the courts in this case side with the employer. Let's give an example.

Arbitrage practice. Based on the results of an internal investigation, the organization’s commission established the fact that an employee had disclosed a commercial or other secret by sending it to external email addresses (the plaintiff’s personal email account and his wife’s personal email account), and therefore it was decided to bring the employee to disciplinary liability in the form of dismissal. The court agreed with the legality of the employer’s actions (Appeal ruling of the Moscow City Court dated January 28, 2014 in case No. 33-5570/14).

Dismissal procedure for disclosing trade secrets

It is the responsibility of the personnel department employees to properly formalize the disciplinary action and dismissal of an employee who has disclosed a trade secret, in order to avoid his reinstatement on formal grounds, i.e., for failure to comply with the dismissal procedure.

Disclosure of a trade secret is a one-time gross violation by an employee of labor duties, for which disciplinary liability is provided up to and including dismissal (clause “c”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation). Dismissal will be legal if the procedure for imposing a disciplinary sanction on the employee is followed (Article 193 of the Labor Code of the Russian Federation).

A notification about the discovery of the disclosure of a trade secret comes, as a rule, in the form of a report/memo from the security service or other employees who discovered this fact. The note reflects: Full name. the employee who discovered the fact of disclosure; information that was disclosed; the circumstances under which the disclosure and discovery of this fact occurred; date and time of disclosure and discovery.

The fact that the employee is really guilty of disclosing a secret protected by law should be recorded in the decision of a special commission, which can be created by the employer to conduct an internal investigation or audit. It is advisable to form a commission no later than the next day after the fact of disclosure is revealed, including at least three competent employees who are not interested in the outcome of the proceedings and have access to the information that was disclosed. An order is issued on the creation of a commission, which indicates the names, initials and positions of the employees included in its composition, the purpose, date of creation of the commission and the period of its validity (it may not be limited to a specific case), as well as the powers of the commission.

The order to create the commission must be familiarized with the personal signature of all employees included in it. But it is not necessary to introduce it to the employee who is being investigated, since the legislation does not contain such a requirement.

Before issuing an order to impose a disciplinary sanction on an employee for disclosing a secret protected by law, a written explanation should be required from the employee (Article 193 of the Labor Code of the Russian Federation). In fact, an explanatory note must be taken from the employee during the internal investigation in order to take into account the explanation provided when summing up the results of the commission’s work and developing recommendations for the manager on the possibility of holding the employee accountable. A request for an explanatory note may be as follows:

Thus, the employee has the opportunity to indicate the reasons for the misconduct. If he is ready to submit an explanatory note, a written demand (see example 4) need not be drawn up. If the situation is clearly of a conflict nature, then this requirement should be made in writing and handed to the employee against signature. In case of refusal to affix a signature, it is necessary to draw up an act or provide a corresponding column in the request for an explanation.

If, after two working days from the date of sending the request, the employee has not provided a written explanation, then the corresponding act is drawn up (Article 193 of the Labor Code of the Russian Federation). If there is an act and a document indicating that an explanation was requested from the employee, the application of a penalty is possible without an explanatory note. Failure by an employee to provide an explanation is not an obstacle to applying a disciplinary sanction (Article 193 of the Labor Code of the Russian Federation). Please note: usually the employee is not familiarized with such an act. The essence of the act is to record the employee’s refusal to communicate with the employer.

If an employee submits an explanatory note, the employer’s further steps depend on the reasons and circumstances of the actions taken in it. It should be noted that failure to provide a written explanation within the prescribed period does not prevent the employee, firstly, from submitting an explanation later; secondly, transfer it not to the person specified in the request, but directly to the head of the organization.

It should be noted that The employer has the right to bring the employee to disciplinary liability, but is not obliged to do so. It is as a result of an internal investigation that the facts of the offense committed are established, and the circumstances and reasons for the employee’s behavior are clarified (Article 192 of the Labor Code of the Russian Federation).

In the event of a trial, the employer will need to provide evidence showing not only that the employee committed a disciplinary offense, but also that when imposing a penalty, the severity of this offense and the circumstances in which it was committed were taken into account, as well as the employee’s previous behavior and his attitude to work (clause 53 of Plenum Resolution No. 2). This requirement is presented to the employer, since according to the Constitution of the Russian Federation, the principles of legal liability include guilt, proportionality and humanism. If the employee believes that he did not commit an offense or did not commit it of his own free will (i.e., there is no guilt), or believes that there are circumstances mitigating his guilt, he has the right to report them in an explanatory note.

Commission work procedure for internal investigation and the procedure for internal investigation are not provided for by labor legislation. An organization can provide for such an order and procedure independently, enshrining them in a local regulatory act.

The internal investigation commission reviews available documents, including official/memorandums of officials, an explanatory note from an employee, documents confirming or refuting the disclosure of trade secrets. The commission may invite the employee who is being investigated, his managers, witnesses to the offense, persons who discovered the offense, etc. Based on the results of reviewing documents and interviewing employees, the members and the chairman of the commission formulate in an act the results of the commission’s work and the conclusions to which it came and made recommendations to the general director about the possibility of bringing the employee to disciplinary liability.

The document must reflect the surnames, initials and positions of all members of the commission; date and place of drawing up the act; the basis and timing of the investigation; information about the work done; place and circumstances of the violation; reasons and conditions for committing a violation; the perpetrators and the degree of their guilt; the amount of damage caused and proposals for its compensation; proposed penalties (taking into account the personal and business qualities of the perpetrators) or other further actions. The act is signed by all members of the commission. The employee guilty of disclosing the information must be familiarized with it against his signature. If he refuses or evades familiarization, a corresponding act is drawn up.

The report with the attached documents, on the basis of which the commission made its conclusions, is submitted to the head of the organization to make a decision on imposing a disciplinary sanction on the employee. The head reviews the results of the commission’s work and gets acquainted with the submitted documents. He may invite the employee who is accused of an offense and other employees for a conversation. The manager makes a decision to impose a penalty on the employee based on his own subjective perception of the proof of the employee’s guilt/innocence, the degree of his guilt, and the employee’s personality.

The Labor Code of the Russian Federation only limits the period for making a decision to impose a penalty. Disciplinary action is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees. Disciplinary sanctions cannot be applied later than six months from the date of the commission of the offense (Article 193 of the Labor Code of the Russian Federation).

Example 9. Sample entry in a work book.

N entries	date	Information about hiring, transfer to another permanent job, qualifications, dismissal (indicating reasons and reference to the article, clause of the law)	Name, date and number of the document on the basis of which the entry was made
Number	Month	Year
1	2	3	4
10	25	12	2014	The employment contract was terminated on	Order
				Connections with disclosure of protected	From 12/25/2014 N 36
				Law of secrecy (commercial),
				Became known to the employee in connection with
				With the fulfillment of his labor
				Responsibilities, subparagraph “c” of paragraph 6
				Part one of Article 81 of Labor
				Code of the Russian Federation
				Seal of Ikarus LLC
				HR Manager
				Gamonov A. P. Gamonov
				Mikhailov

According to Art. 84.1 of the Labor Code of the Russian Federation, termination of an employment contract is formalized by order (instruction) of the employer. If the order cannot be brought to the attention of the employee or he refuses to familiarize himself with it under his personal signature, a corresponding entry is made in the order. The order can be drawn up in the form approved by the Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1 or in a form independently developed by the company.

The day of termination of the employment contract in all cases is the employee’s last day of work. On the day of termination of the employment contract, the employer is obliged to issue the employee a work book and make payments to him in accordance with Art. 140 Labor Code of the Russian Federation. An entry in the work book about the basis and reason for termination of the employment contract must be made in strict accordance with the wording of the Labor Code of the Russian Federation.

This concept means special treatment handling information entered in a specific organization. This is a system of measures aimed at maintaining the confidentiality of certain information.

At the same time, such a regime allows a legal entity to avoid certain expenses or increase income, maintain or improve its position in the market.

What falls into the category

This category may include various information:

• information about the economic condition of the company (presence of profits or losses);
• information about utility models, know-how, industrial designs that are used in the organization;
• information about the company’s partners: clients, counterparties, intermediaries and other persons conducting business relations with it;
• information about the management system installed in the organization;
• information about the company’s property, its value, the presence of various types of debt;
• other information that the person wishes to hide.

Certain information cannot be placed under the trade secret regime. This:

• information about the founders of the organization, its leader, as well as information contained in;
• data on the number of employees, their working conditions and remuneration system;
• information about violations of the law and cases of prosecution;
• other information specified in Article 5 of the Federal Law “On Trade Secrets”.

A trade secret requires a special system of information protection. It includes a number of organizational and technical measures.

1. Employees of the organization who were entrusted with information as part of the performance of their duties.
2. Representatives of counterparty companies who have signed a non-disclosure agreement on certain information. Partnerships between legal entities often involve the exchange of data related to intellectual property.
3. Persons who unlawfully acquired hidden information. For example, as a result of unauthorized access to equipment, computer technology, documentation.

The person must be notified that the information he has received is a trade secret. To achieve this, employees working with data carriers are familiarized with confidentiality measures. A separate internal document is being developed for this purpose.

The owner must take measures aimed at limiting access to confidential information. For example, documents must have the appropriate stamp. They must be stored in a place with limited access (in a safe or locked room).

Legal norms

Trade secrets are largely regulated by the internal acts of the organization where such a regime is established. The basis for the legal regulation of this institution is No. 98-FZ of July 29, 2004 “On Trade Secrets.” This act contains the main categories of data that may or may not be kept secret.

Liability measures for the disclosure of information classified as a trade secret are established in the Code of Administrative Offenses, the Criminal Code of the Russian Federation, and the Civil Code of the Russian Federation.

Procedure for punishment of proof of guilt

An employee's responsibility for disclosing a trade secret occurs only if there is guilt. The person must be aware that the information is a trade secret. And also to realize that the act being committed is contrary to the procedure established for handling such information.

Today, data stored in electronic systems is increasingly used as evidence of guilt. This is information about the time a particular employee worked on the computer, his requests, the documents he opened, etc.

Measures and types of responsibility

For the violator, several penalties may occur simultaneously. Thus, the commission of a crime will be grounds for the dismissal of the perpetrator as part of the imposition of a disciplinary sanction. Also, the employee will be brought to administrative or criminal liability, depending on the circumstances of the act.

Disciplinary

Measures of such responsibility are expressed in dismissal or reprimand. It occurs only in the case where the employee has undertaken an obligation to keep a trade secret and has violated it.

Civil law

Disclosure of confidential information is associated with damage to its owner. The injured person may receive in court two types of compensation:

• actual damage– reduction of property and expenses of a person to restore the original state;
• lost profit– profit that was not obtained solely due to illegal actions.

It should be noted that employees who disclose trade secrets cannot be brought to civil liability. For relations with the employer, only the norms of labor legislation are applied, where measures of material liability are established.

Administrative

In the Code of Administrative Offenses of the Russian Federation, it is worth paying attention to, which establishes the responsibility of a person for the disclosure of any data, access to which has been limited in accordance with the law. Trade secrets also fall into this category.

Measure of responsibility - fine from 500 to 1000 rubles. A more stringent sanction has been established for officials - from 4000 to 5000 rubles.

Only those persons to whom the trade secret became known in connection with the performance of their labor function or professional duties can be prosecuted under this article.

Criminal

In the Criminal Code of the Russian Federation, liability for violation of the trade secret regime is established in Article 183. Part 1 provides for the unlawful receipt of information by a citizen who did not have access to media containing information constituting a trade secret.

Part 2 regulates cases where a person legally obtained information, but used it illegally and without the permission of the owner. Part 3 prohibits the disclosure of information committed for personal gain or causing major damage. Part 4 applies if there are serious consequences.

The perpetrators may be subject to the following types of punishments:

• a fine of up to 1.5 million rubles (or in the amount of earnings for a period of up to 3 years);
• forced labor for up to 3 years;
• imprisonment for up to 7 years;
• deprivation of the right to hold positions or engage in activities related to keeping trade secrets.

Features of initiating a criminal case

When initiating a case, it is necessary to find out whether the organization has a provision regulating the regime of trade secrets. It is also necessary to find out whether the citizen was obliged to follow the rules established by such a regime.

Let's give an example. Chernov O.A. was hired by an insurance organization under a contract to receive documents on the occurrence of insured events. The contractor was given full access to client databases installed on the work computer. At the same time, Chernov did not sign any additional documents regarding the storage of trade secrets.

The data was used by the citizen for personal gain. The case was refused. The insurance company was recovering damages in a civil lawsuit.

After identifying the object and subject at the stage of initiating a case, the investigator is faced with the task of establishing a connection between the actions of a specific person and the violation of the trade secret regime.

The most important circumstances are the exact time and place of the crime. Such data makes it possible to establish which of the employees used information carriers, illegally copied information, or transmitted it via electronic communication channels.

If many company employees had access to data during the working day, it will be extremely difficult to identify a specific culprit.

Let's give another example. Chugai A.A. worked in the claims settlement department of an insurance company. He had access to confidential information; in accordance with the terms of the employment contract, he had to comply with the trade secret regime. At the same time, information from the database Chugai A.A. used for personal gain: he printed out documents submitted by clients and passed them on to third parties.

Due to the fact that entries into the database were recorded, the investigation was able to establish the number of cases of unauthorized use of hidden information.

In the end, everything depends entirely on how the work with confidential data is structured in a particular company. If each employee has his own password to enter the database, information about the actions performed on the computer is recorded, then it will not be difficult to identify the culprit.

Court decisions

Criminal justice is based on the principle of the presumption of innocence. Therefore, in such a case, the verdict depends entirely on how accurately the person who violated his obligations in the use of information classified as a trade secret is identified.

During the process, the prosecutor must prove that an employee of the organization had access to confidential information, was obliged to maintain a trade secret regime, understood the nature of the data available to him, and used it without the owner’s consent.

Most often, legal entities cannot adequately ensure data security. Personal computers have access to the Internet, many employees know access passwords, employees use their own storage media (flash drives, disks, etc.). In such a situation, the verdict will be acquittal.

Advice from a lawyer regarding the disclosure of trade secrets is in this video.