On 4 August 2022 the Voivodeship Administrative Court in Warsaw handed down a judgement under case II SA/Wa 542/22. The cited judgement overturned a penalty of admonition imposed by the President of the Personal Data Protection Office (UODO) on an employer who failed to delete a job candidate’s data after the recruitment. At the same time, the court contributed to a long-standing discussion.
The legal problem addressed by the Court concerns the admissibility of a would-be employer to store a candidate’s personal data collected during recruitment. The processing of data for the purpose of recruitment has its basis in the employer’s legal obligation arising directly from Article 221 of the Labour Code, but the provision is silent on the fate of such data after the recruitment is completed, when the candidate has not been hired. Obviously, this is not about a situation where data is kept for future recruitment based on the candidate’s consent.
The stance of the UODO
The issue has been debatable for several years. Shortly after RODO came into force, the UODO issued a guide for employers. According to the guide the employer had the obligation to permanently delete (immediately after the end of the recruitment) the data of a candidate with whom a contract of employment has not been concluded. The Office underlined that the basis for the processing could not be the administrator’s interest – the desire to protect against a possible candidate’s claim, e.g. regarding employment discrimination, as this would be keeping the data for future purposes, contrary to the principle of minimisation. In order for a legal interest of the data controller to arise, such a claim would have to be made at the moment of the decision to retain the data. In addition, it is unclear how long such data could be stored. The Office reiterated this stance in the admonitory decision.
The stance of the WSA
There has been criticism of this view in the literature. A different stance was also expressed by the Ministry of Digitalisation in its guidelines from 2019. It was pointed out that an employer may keep recruitment documents of people who have not been hired for the purpose of protection against possible claims related to recruitment. The Voivodeship Administrative Court has questioned the organ’s stance. Although the reasons for the judgement are not yet available, it appears from the oral recitals that the court agreed with the second stance and complainant’s arguments. It was argued in the complaint that the employer not only can, but is even obliged to store the personal data of the candidates – also in their interest, so that in the event of an action, a very specific one, as it is based on discrimination in employment, it is possible to monitor the recruitment and to trace what criteria were actually used, how the candidates were compared. Also, the retention period is not indefinite – it should not be longer than the period of limitation for such a claim, i.e. three years. The judgement, if it becomes final and valid, should finally resolve doubts and induce the UODO to change its stance on the issue.