It is possible to store candidates' data after the recruitment process is completed | PRO HR September


The Voivodeship Administrative Court in Warsaw overturned the decision of the President of the Personal Data Protection Office, finding valid our arguments that the employer has not only the right, but also the obligation to store such data in order to prevent discrimination.

In the oral recitals of the judgment, it was pointed out that the President of the Personal Data Protection Office interprets too narrowly the purpose derived from legitimate interests pursued by the controller or by a third party.

It does not take into account at all the rights and interests of the candidates participating in the recruitment process, who may be deprived of the possibility of demonstrating the plausibility of discrimination when, after the recruitment process, all data – except the data of the selected person – are deleted. 

A person wishing to obtain information on why he or she was rejected does not have such a possibility and, consequently, it is impossible to determine the criteria on the basis of which some people moved on to the next stages of the recruitment and others did not.

In accordance with the Labour Code, a person with regard to whom the employer has breached the principle of equal opportunity in employment (and therefore also an unsuccessful candidate) has the right to damages.

If the person demonstrates the plausibility of the claim, the employer must prove in court proceedings that there was no discrimination and that it followed only objective criteria in hiring.

In order to do so, the employer must be able to compare the qualifications and qualities of the candidates that determined whether to proceed to the next stage of the recruitment process or to hire the person.

It must therefore have the personal data of all candidates who participated in the process.

Prevention of discrimination is one of the employer's primary responsibilities. Implementation of this obligation should manifest itself in a whole range of measures, including those of preventive nature (as in the case of mobbing).

Such measures may include, among other things, a random check of the correctness of the recruitment processes, including objectivity in the selection of candidates at its various stages.

If the employer deletes the data of all unsuccessful candidates as soon as the recruitment is completed, there is no real possibility of overseeing the transparency and objectivity of the recruiting process.

When retaining candidates' data after the recruitment process is completed in accordance with the principle of minimization and limitation of the purpose of storage, it is necessary to verify which data are necessary to demonstrate the reasons for rejecting a candidate. 

The ruling is not final.

Find more in the PRO HR September 2022.