12.09.2020

Personal data in the recruitment process

Łukasz Wieczorek

The legislator in the Labour Code directly indicates what personal data the employer may request during the recruitment process. The catalogue includes the first name(s) and surname(s), date of birth, contact details indicated by such a person, education, professional qualifications and the employment history. The employer requires personal data concerning education, professional qualifications and the employment history if it is necessary to perform a specific type of work or to work on a specific position.

Against this background, it is doubtful, e.g. whether within the framework of this data catalogue, the future employer can request confirmation of the information from the candidate’s CV, including, e.g. submission of employment certificates. It should be emphasized that as of January 1, 2019, the regulation of the Minister of Labour of 28th May, 1996, which directly allowed the possibility to request certificates of employment from previous places of employment of the applicant, is no longer in force. Therefore, there is currently no legal basis for uniformly demanding all the certificates of employment from all candidates. However, if the previous employment of an employee ended in the same calendar year, it is necessary to provide a certificate of employment from the previous place of employment, as it serves the purpose of correct calculation of the leave to which the employee is entitled and of possible use of other limited absences by them. Therefore, it can be considered that a candidate with whom a decision to cooperate has already been made can be asked to provide a certificate of employment from the last employer for these purposes.

On the other hand, in case the employer is able to show that the information from the certificate of employment is necessary to perform work on a specific position, the candidate may be required by the future employer to provide the certificate(s) of employment (from the previous years as well) during the recruitment process before the contract is drawn up. The candidate’s personal data should, as a rule, be made available to the employer in the form of a statement by the data subject. However, the employer may demand personal data to be documented to the extent necessary to confirm it (e.g. by presenting an employment certificate). As a rule, however, the need to request a certificate of employment should be considered individually – therefore, we should not request the certificate to be presented by all candidates, but only by those for whom it is justified.

Other changes entered into force on May 4, 2019 – since that date, employers may not obtain personal information from job applicants and employees in the form of the names of their parents. This also means that, from this date, the employment certificate issued may not contain this data either.

In many situations, future employers see a need to confirm candidate data in sources other than the candidate’s own statement, e.g. by reference. The transfer of references may take place at the initiative of the candidate himself or at the request of the employer, but in such a situation, failure to provide these documents may not be the basis for unfavorable treatment of the candidate or employee, nor may it cause any negative consequences for them, in particular, may not constitute a reason justifying refusal of employment. It is also important to note the rigorous position presented by the President of the Personal Data Protection Office (Polish: PUODO), who claims that, as a rule, it is not allowed to confirm the employment of a person applying for a job from other sources than the employee. To quote PUODO:

It is not acceptable for a potential employer to obtain information about a candidate for an employee from their previous employer if he does not have the candidate’s consent to the above. It should also be remembered that a job applicant’s submission of so-called references does not entitle the employer to contact the entity issuing them in order to obtain additional information about the applicant. It should be remembered that providing the employer with personal data takes the form of a statement of the person concerned. Thus, the potential employer cannot ask the previous employer for information about the tasks performed by the candidate with this entity and what is his opinion about the candidate. During the recruitment process the candidate themself should be the source of information concerning the history of  their professional work.

This is, of course, only the opinion expressed by the body, but it should be assumed that it will be sustained by PUODO in case of, e.g. carrying out checks.

Contact

Konieczny, Wierzbicki
Kancelaria Radców Prawnych sp.p.
Warszawa

ul. Piękna 15 lok. 34

+48 12 3957161

kancelaria@kwkr.pl

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