Katarzyna Żukowska

Consultation concerning intended redundancies and personal date protection

When an employer consults with a trade union concerning the intention to lay off workers, it is easy to run afoul of data protection regulations.

Art. 38 §1 of the Polish Labour Code imposes an obligation on an employer intending to terminate an employment contract for an indefinite period to notify the workplace trade union organisation representing the employee of its intention, stating the grounds justifying termination of the employment contract. And under Art. 30(21) of the Trade Unions Act of 23 May 1991, in individual employment matters in which the law requires the employer to cooperate with a workplace trade union organisation, the employer must seek information from the organisation about employees enjoying the protection of the organisation. Failure by the organisation to provide such information within 5 days releases the employer from the duty to cooperate with the organisation in matters concerning such employees.

For years, Art. 30(21) of the Trade Unions Act has been the subject of controversy in the legal literature. There was no agreement on whether this provision gives the employer grounds to demand a collective list of employees represented by the trade union, or whether the employer should instead submit a specific inquiry to the union concerning the employee in question. This issue was further complicated by the issue of protection of the personal data of employees, which has recently been raised for the most part in the case law of the administrative courts. Trade unions began refusing to provide employers information about all employees enjoying the union’s protection, citing the rules for processing of personal data (as referred to in Art. 23(1)(2) of the Personal Data Protection Act of 29 August 1997). Against this background, the question arose whether the failure by the trade union to identify the employees protected by the union, citing data protection concerns, releases the employer from the duty to notify the union organisation of the intention to terminate an employment contract.

In a resolution dated 24 January 2012 (Case No. III PZP 7/11), the Supreme Court of Poland held that a workplace trade union organisation may refuse on data protection grounds to provide an employer a list of names of employees protected by the union. For this reason, the only permissible method for performing the obligation under Art. 30(21) of the Trade Unions Act prior to consultation under Labour Code Art. 38 is to request information from the union organisation on whether or not a specific employee is protected by the union (rather than requesting a list of names of all protected employees).

However, a different view was taken by the Supreme Court in its judgment of 14 June 2012 (Case No. I PK 231/11). Under this holding, what is required and sufficient is for the employer to request from the workplace trade union organisation information about employees enjoying the union’s protection in individual employment maters in which the labour law requires the employer to cooperate with the workplace trade union organisation. In order to obtain such information, the employer need not inquire about specific, named individuals, nor state the specific purpose for the requested information, since membership in a legally functioning social organisation is public, voluntary and open in nature and should not be hidden behind data protection regulations. The court also found that there is no legal or rational justification for prohibiting disclosure of membership in public social organisations, because the existence of organisations with secret membership is constitutionally prohibited. When the labour law requires the employer to cooperate with a workplace trade union organisation in individual employment matters, the employer may process data concerning all protected employees if necessary to carry out its legal obligations. The Personal Data Protection Act should not be interpreted in a manner that would result in depriving employees of the protection of the union organisation in individual matters or limiting their protection.

The Supreme Court attempted to resolve the discrepancy between these rulings in a resolution of a seven-judge panel dated 21 November 2012 (Case No. III PZP 6/12). Under this resolution, failure by a workplace trade union organisation to provide information about all employees under its protection, requested by the employer without an objective need, does not release the employer from the obligation to cooperate with the organisation in individual employment matters. The court found that there was no compelling rationale for the interpretation of Art. 30(21) of the Trade Unions Act presented in the Supreme Court judgment of 14 June 2012 in Case No. PK 231/11 and other earlier rulings. Such interpretation infers a duty on the part of the union organisation which is not set forth in the act. This provision clearly indicates that it is the employer that must take the initiative in determining whether an employee enjoys union protection. The court rejected an interpretation under which an employer could request information once, after the union organisation is established, concerning the employees protected by the union, and then, after waiting 5 days, be released forever from the obligation to consult with the organisation.

Before providing information about protected employees, the union organisation must consider whether providing the information will violate the rules for protection of such data, particularly in terms of the need for the data, which are to be processed for a particular purpose expressly permitted by statute. In this instance, the purpose is for the employer to cooperate with the union organisation in individual employment matters. In the view of the seven-judge panel, the employer does not need to have a list of all protected employees in order to conduct the consultation. Gathering such personal data would facilitate performance of the obligation to cooperate with the union organisation, but is not essential for this purpose. The employer’s right to collect an employee’s personal data applies to the data expressly indicated in Art. 232 of the Labour Code and other acts. In the case of a list of employees enjoying the protection of a trade union organisation, such right is not expressly provided by Art. 30(21) of the Trade Unions Act.

However, in the opinion of the Supreme Court, in order to fulfil the employer’s obligation under Art. 30(21) of the Trade Unions Act, it is not necessary to state in the request the employer’s intention with respect to the specific person. For the employer to provide specific information about its intention would constitute unwarranted processing of personal data. In the court’s view, the employer must have a basis for seeking the information and for collecting the data concerning union protection of the specific employee, but the basis should not be disclosed to the trade union at this pre-consultation stage. It is sufficient to state that it involves the need to cooperate with the trade union in an individual employment matter. When the trade union provides the data to the employer, it should notify the person in question that his or her data have been processed in this manner, and the employer should do the same after receiving the information.

Katarzyna Żukowska, Employment Law Practice, Wardyński & Partners