This article is brought to you by Eversheds Sutherland.
Today’s era brings a wide range of opportunities for screening people, both job applicants and employees. There are both serious and less serious reasons for such screening on the part of employers. What are the legal limits set by the Labour Code on screening?
Mgr. Jana Sapáková, LL.M. Eur, Counsel
Even before an employment contract is concluded, the employer and the employee have different rights and obligations. These are in particular mutual information obligations. Pursuant to Article 41(7) of the Labour Code, a natural person is obliged to inform the employer of facts which hinder the performance of work or which could cause harm to the employer. Such facts may, for example, be a suspended driving licence in the case of a professional driver or a sales representative. This category also includes information about the pursuit of a competing activity, unless the employee intends to cease pursuing it. The question is what other information the employer and the potential employee may lawfully obtain about each other, beyond that required by law to be disclosed.
Article 11 of the Labour Code, as amended (hereinafter referred to as the “Labour Code”), provides that “An employer may only collect personal data about an employee relating to the employee’s qualifications and professional experience and data that may be relevant to the work that the employee is to perform, is performing or has performed.” This principle is related to the right to privacy, but is rather vague and therefore it is always necessary to assess on a case[1]by-case basis what personal data may be relevant to the job.
The employer first obtains personal data related to qualifications and professional experience from the applicant himself, i.e. from his CV and, where applicable, from a job reference or employment certificate. Further information may be obtained from the previous employer only with the consent of the employee concerned.
SOCIAL NETWORKS
In practice, we mainly encounter searching for information about a potential employee on the Internet and on social networks. In these cases, it is necessary to proceed individually. Just because an employee discloses some information about themselves does not mean that the employer can consider it in the context of pre-contractual relations. For example, Facebook or Instagram is more for sharing private, non-work related information. LinkedIn, on the other hand, is more of a professional network, and although the employee’s account is his/her private account, if he/she connects with an organisation and the organisation sees the employee’s posts, and if they are of a work nature, the potential employer may take them into account as part of his/her decision-making process.
CRIMINAL RECORD EXTRACT
A separate chapter is the employer’s requirement for the employee to produce a criminal record certificate as part of the selection procedure or during the employment relationship. The production of a criminal record certificate must be considered in the light of the type of work performed and the position held by the employee. Section 41(6) (c) of the Labour Code expressly provides that the employer is not entitled to request information on integrity except in the case of work for which integrity is required by a special regulation or where the requirement of integrity is required by the nature of the work to be performed by the natural person. It is appropriate to provide for such a requirement and to provide sufficient justification for it in the employer’s internal rules. It may be justified, for example, if the employee will have access to payment information or payment card data, where such data could be misused. In the case of a cook or waiter, or in the case of an assembly line employee, for example, the inspection body could assess the requirement to produce a criminal record as unjustified and contrary to the Labour Code.
SANCTION LISTS
Given the current political situation, in some situations it may be mandatory or appropriate to check whether a job applicant/employee is on a sanction list. Act No. 289/2016 Coll. on the Implementation of International Sanctions is a legal regulation in this area.
CONCLUSION
In general, individuals are increasingly protective of their privacy and aware of their rights in this area. It will therefore always be important to assess the specific situation and its relationship to the legal limits and to the rights and legitimate interests of both the employee and the employer. Any interference with an employee’s privacy must take place within the limits of the law and must be justified.
Eversheds Sutherland
