Dr Szymon Kubiak, Dr Damian Flisak

Pre-employment screening – what an employer can do and must not do?

There are legal restrictions on obtaining information from job candidates.

For obvious reasons, obtaining reliable information about job candidates is essential to successful recruitment efforts. In common-law countries, the law tends to look favourably on such efforts by employers, and best practice includes extensive pre-employment screening. Polish law, by contrast, is highly restrictive in this respect.

Under Art. 221 of the Labour Code, the information which an employer may demand from an employee or a person seeking employment is limited to the person’s name, the first names of the person’s parents, date of birth, residence (understood to mean mailing address), education, and employment history. The employer may also demand documentation of such information by submission of employment certificates, diplomas, or certification of qualifications.

Nowadays the specific knowledge that job candidates were taught in school is often less important than skills they have picked up on the job, such as their ability to take on challenges, deal with stress, or manage other people. Employers may obtain such information through references or from people who have worked with the candidate. However, Polish law does not allow employers to demand that candidates present such references. References may be checked only when provided voluntarily by the candidate, and failure to provide references may not result in any negative consequences for the candidate.

There is also a visible trend toward maximum anonymity of the recruitment process. Faced with concerns about discrimination (and related claims), some employers request candidates to limit their job applications to specific experience and “hard” skills. Whether this approach is sensible or effective is doubtful, but if an employer has ever dealt with discrimination claims and wants to improve its image, or if this is the hiring policy of the parent company, there is no reason that the preliminary phase of recruitment cannot be carried out entirely anonymously.

An employer has little opportunity to learn more about a candidate. Only when the person has actually been hired does the law entitle the employer to receive certain additional information, such as data concerning children (if the employee seeks parental benefits) and the employee’s personal identity number (PESEL). The sample employment questionnaire published by the Ministry of Labour and Social Policy also includes items concerning citizenship, additional skills, certifications and interests (in the case of a job applicant), and, in the case of an employee, his or her tax number, military service status, and data for the person who should be contacted in the event of an accident.

Employers will often want to determine whether an applicant has a criminal record, but in Poland the right to seek this information is highly restricted. As a general rule it is prohibited, with exceptions for certain positions which legally cannot be held by persons convicted of certain crimes, in which case the criminal register must be checked. These include members of the management board of banks, investment funds, and insurance companies, members of the supervisory board of insurers, and directors of the principal branch of a foreign insurer. Significantly, the law does not entitle an employer to check the criminal register just because the job in question requires the employee to handle large sums of money. By contrast, English law, for example, authorises an employer to find out whether a person applying to work as a bank teller or a casino dealer has a criminal record. Polish law does not.

This raises the question of whether obtaining information that extends beyond the scope of the statutory list is permissible if the employee or candidate presents it on his or her own initiative. Under the developing line of judicial precedent, an employee’s consent to disclosure of this type of information, given as a result of a veiled request from the employer (not to mention an outright demand) may be treated as forced under the circumstances and thus de facto involuntary. Although the Personal Data Protection Act permits processing of personal data of persons who have expressly and voluntarily consented to processing of their data, the nature of the relationship between an employer and an employee or job candidate excludes the voluntary nature of the individual’s consent. This conclusion may be drawn from the judgment of the Supreme Administrative Court dated 1 December 2009 (Case No. I OSK 249/09). There the court held that an employer may process the personal data of an employee obtained with his or her consent only if the employee has complete discretion on whether or not to provide consent and may refuse to provide consent without suffering any detrimental consequences. The judgment strongly suggests that the subordination characteristic of an employment relationship generally rules out a finding that such a decision is truly within the employee’s discretion.

A similar approach is taken in the proposed EU regulation to revise data protection law. It essentially provides that an employee’s consent should not constitute valid legal grounds for processing his or her personal data. If the regulation is adopted in this form, it would effectively close any loophole enabling an employer to obtain additional information from a job candidate upon the consent or initiative of the candidate.

Dr. Szymon Kubiak, Employment Law practice, Wardyński & Partners

Dr. Damian Flisak, Intellectual Property practice, Wardyński & Partners