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Preliminary Investigations and Privacy: What you can request to the Candidate

By Damiana Lesce and Valeria De Lucia

The employer must follow the Privacy Policy in all the activities related to the business process and – in particular – whenever he deals with employee information for the employment relationship management.

This duty is already present before the stipulation of the employment contract.

In fact, the future employer must respect the privacy of the potential employee, as if he were already an employee. In this case, the Privacy Policy crosses the Workers’ Statute.

In fact, the Data Protection Authority has stated that the employer who is willing to hire a person must use its personal data, respecting both the limits imposed by the Privacy Act and those already provided in the Employees’ Statute.

The jurisprudence has dealt with the issue of investigations directed to the recruitment, excluding the legality of investigations into all aspects of the private life of the candidate. Thus, the difference between lawful and unlawful investigations lies on the relevance of the information in relation to the tasks of the worker.

Therefore, collecting the data relating to the candidate’s private life is unlawful if it affects the privacy right of the candidate and is not significant for the employer. Significant is the information gathered to check the professional skills of the candidate, such as a precise intellectual or manual ability required to perform a determinate job.

The process of acquisition of the information is affected by this issue as well. International law on personal data protection requires that employees themselves must be the primary source of the information concerning them.

Indeed, both the Recommendation no. R (2015) 5 of the Council of Europe, and the “Code of Practice” – adopted by the ILO in 1997 – affirm: “all personal data should, in principle, be obtained from the individual worker”.



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