When carrying out the recruitment process, the employer wants to obtain as much information as possible about the candidates in order to make the right decision about hiring. Verification of candidate data is therefore an integral part of recruitment, but how far can this process be taken?
The issue of the data that can be processed from an applicant for employment is indicated in Article 22 (1) of the Polish Labour Code Act of 26 June 1974 (i.e. Journal of Laws of 2023, item 1465, as amended; hereinafter: “Labour Code”) and includes:
- first name(s) and surname;
- date of birth;
- contact details indicated by such person;
- education;
- professional qualifications;
- previous employment history.
It is worth emphasising that data on education, professional qualifications and history of employment may only be requested by the employer if their acquisition is necessary for the performance of a specific type of work or position.
Limits of verification
As indicated in the publication prepared by the President of the Office for Personal Data Protection, “Personal Data Protection at Work. A Guide for Employers”, the candidate’s personal data enumerated in Article 22 (1) of the Labour Code should be treated by employers as the exclusive data that may be processed by them, in accordance with the principle of minimalism in the processing of personal data contained in Article 5(1)(C) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation; OJ. EU. L. of 2016. No. 119, p. 1 as amended; hereinafter: ,,GDPR”).
However, the situation is different if the candidate himself decides to indicate additional information in the CV or covering letter. Pursuant to the content of Article 22 (1a) of the Labour Code, the basis for the employer’s processing for the purposes of the recruitment process of personal data other than the basic data listed above may be the consent of the person applying for employment, provided that it fulfils the prerequisites described in the GDPR Regulation.
What about verification of the candidate’s data with a third party?
A common practice in the recruitment process is to undertake telephone contact with the candidate’s former employer. It should be noted that, from a legal point of view, taking such action without the candidate’s consent may be considered as an infringement of the candidate’s personal rights and a violation of the principles of proper processing of personal data.
The President of the Office for the Protection of Personal Data takes a stricter stance in this respect, indicating that obtaining information about the candidate from the former employer is unacceptable, even if the candidate has voluntarily provided references from previous employers. According to this interpretation, during the recruitment process, the sole source of information about the candidate should be the candidate himself.
Similar positions are also shared by the Supreme Administrative Court, which in its judgment of 01.12.2009, ref. no. I OSK 249/09 argues that the recognition of the fact of an employee’s consent to the processing of his/her personal data in a scope broader than that indicated in Article 22 (1) of the Labour Code as a circumstance legalising the collection of such data by the employer would constitute a violation of the provisions of the Civil Code.
Discrimination in the recruitment process?
The recruitment interview itself may also be an extremely sensitive issue. The regulations and practice are unambiguous on this point – it should only relate to professional issues, and any transgression of this scope may bear the hallmarks of discrimination covered by Article 18 (3a) of the Labour Code. Questions directed at a candidate touching on his or her personal matters may carry far-reaching consequences for the employer, including the risk of legal proceedings. Issues that, by way of example, should not be raised by employers during an interview include questions about:
- religious beliefs;
- political views
- health status,
- addictions
- family status
- personal plans;
- sexual orientation;
- the candidate’s criminal record (with inclusions found in specific legislation).
The case law also remains consistent in this respect, indicating, for example, that a female employee taking up employment is not obliged to disclose the fact that she is pregnant if the work she intends to take up is not prohibited on the grounds of maternity protection (Supreme Court judgment of 17.04.2007, ref. I UK 324/06).
Summary
Verification of candidates’ data is an indispensable element of the recruitment process, but it must be carried out in a lawful manner. Although the vision of collecting additional data on a job applicant may help to make a better hiring decision, one must be mindful of the issues of proper data processing and not infringing on the candidate’s personal rights.
When recruiting, it is important to focus only on data that is relevant to the job and does not go beyond the code regulations. Whenever new personal data is processed, it is advisable to carry out a balancing test between the interests of the employer and the interests and rights of the candidate. By keeping in mind the principles of proper recruitment, employers protect the rights of candidates while building trust and a positive image of the organisation in the labour market.
Author:
Zofia Kwiatkowska, Lawyer
