Changes to the Labour Law
New rules for the processing of personal data from 4 May 2019
On 4 May 2019, an act of 21 February 2019 revising some other acts came into force with a view to ensure the implementation 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) – Dz.U.730.2019.
What data can the employer demand from the candidate and the employee?
The act amends, among other acts, the Labour Code. New Article 221§ 1 provides that an employer may demand a person applying for employment to provide the following personal data:
- name(s) and surname;
- data of birth;
- contact data indicated by that person;
- professional qualifications;
- employment history.
In addition, a new provision was added which provides that the employer may demand provision of personal data regarding education, professional qualifications or employment history only when it is necessary to perform work of a specific type or in specific position.
To recapitulate, as a result of this amendment, from 4 May 2019, employers may not demand a candidate to provide names of parents or residential address (mailing address). The employer, however, will be able to demand from a candidate to provide contact details (e.g. telephone number, e-mail address, PO box). It will be up to a candidate do decide which data to provide.
The employer may demand an employee to provide additional personal data, including:
- residing address;
- PESEL number, or - if no PESEL was assigned – type and number of document confirming the identity;
- other personal data of an employee, as well as personal data of employee’s children and other members of employee’s close family, if it is necessary for an employee to exercise special rights provided for by the labour law;
- education and employment history if there was no basis to demand them from a person applying for employment;
- number of bank account if an employee did not file a request to receive salary payments tendered directly to an employee.
An employer may demand personal data other than those referred to in the labour code from a candidate or an employee when it is necessary to exercise a right or fulfill an obligation resulting from provision of law.
Personal data are provided to an employer in the form of a statement by the person whom the personal data concern. The employer has the right to demand the provision of documentary evidence of the personal data of a candidate or an employee to the extent necessary to verify them.
Demanding from a candidate or an employee to provide the above personal data arising directly from provisions of law, does not require the consent of person who provides them.
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The amended Code also regulates the rules of processing of personal data with the consent of a person applying for employment and an employee.
Processing of personal data of a person applying for employment and an employee is also possible on the basis of a consent which must comply with all requirements laid down by law. A candidate or an employee may give consent to provide standard personal data (e.g. information on professional qualifications, if they are not necessary to perform work of specific type or in specific position but through such consent e.g. want to increase their chances for employment) or even sensitive data. In the case of sensitive data, personal data could only be processed when such personal data are provided exclusively on initiative of a person applying for employment or an employee. In the case of ordinary data, personal data may be obtained on initiative of a person applying for employment, an employee or an employer.
Processing of biometric data of an employee is allowed when provision of such data is necessary due to controlled access to particularly important data whose disclosure may cause losses to an employer or access to premises requiring particular protection.
Monitoring in the workplace
The amendment highlighted the provision that monitoring may not be used in premises made available to the establishment’s trade union due to the protection of the rights arising from freedom and independence of trade unions.
To protect the privacy of employees a provision was added which states that monitoring of sanitary facilities requires a prior consent of the establishment’s trade union and if no trade union operates at the employer – a prior consent of the employees’ representatives appointed according to the procedure adopted by the employer.
Pursuant to the amended provisions, from 4 May 2019, employers may demand a newly-hired employees to provide a medical certificate declaring his or her ability to perform work together with referral to medical examinations constituting the basis for issuing such certificate.
Further, it was specified that an employer should safekeep the certificates issued on the basis of medical examinations and received certificates and referrals.
If it is found that the terms specified in the received referral does not correspond to the conditions prevailing in the given work environment, an employer has an obligation to return to the newly-hired employee both the referral and medical certificate issued on the basis of such referral.
Director of Personnel Department
This bulletin has been prepared for general information about legal issues and is not intended to be relied upon as professional advice. Please refer to your adviser for formal advice before taking any decision or action with respect to information contained herein.