You have not been hired – the company has the right to

According to the guidelines issued by the Ministry of Digitization, employers do not have to destroy applications submitted by interested parties during the recruitment process, if they have reasons for their further processing.
After the recruitment is completed, the employer has the right to keep the documents of those who were not hired in order to protect them against possible claims that may arise from the recruitment conducted previously.It is also permissible to collect CVs e.g. for the needs of future recruitment (if the candidates have given their consent). This is according to the legal clarification issued by the Minister of Digitization pursuant to Article 33 of the Act of 6 March 2018. – Enterprise Law (Journal of Laws, item 646 as amended). This is a new form of guidance empowered by law.
– Employers who comply with the clarifications will thus gain a guarantee of proper operation and security as to their responsibility for compliance with the law, says Marek Zagórski, Minister of Digitisation.
He emphasizes that these companies will not bear any consequences even if the controlling bodies (e.g. the Office for Personal Data Protection – UODO) adopt a different assessment of the circumstances of a given case and find – in their opinion – a violation of regulations.
– The interpretation provided in the explanations may only be challenged in court. As long as there is no judgment requiring a change in the contents of the explanations, they are binding and guarantee that entrepreneurs who apply them do not violate the law,” added Adam Abramowicz, spokesman for small and medium-sized entrepreneurs.
This emphasis on the legal force of the explanations is very important. In October last year, UODO presented its interpretation of the regulations on conducting recruitment. It concluded that potential claims of discrimination do not justify storing CVs after the recruitment process has ended.
The Office had previously adopted a different interpretation from the one presented yesterday by the Ministry of Digitalisation. And it reacted sharply to the department’s decision to issue a clarification. Dr. Edyta Bielak-Jomaa, president of UODO, issued an official statement on the matter. In it, she stressed that “in light of EU law, the President of the PDPA is not bound by any formal legal clarifications on the application of RODO.” Therefore, she appealed “not to take actions that may expose Polish entrepreneurs to negative consequences and, in the long run, hinder their activities and, consequently, raise the question of possible liability of the State Treasury for such damages.”
– The explanations are not directed against any office. We have prepared them with entrepreneurs in mind, because we have received many notifications and signals about the need to clarify the regulations on recruitment – explains Minister Zagórski.
This storm at the top of the government does not serve the addressees of the law.
– UODO and the Ministry of Digitalisation should adopt a common interpretation. Otherwise, entrepreneurs will have a dilemma – should they listen to the body that creates the law or the one that controls its observance,” says Dominika Dörre-Kolasa, PhD, legal adviser and partner at Raczkowski Paruch.
In her view, the very discussion as to whether the body that is responsible for creating the regulations has the right to comment on their application is absurd.
– After all, it is the body that formulates new regulations,” the expert stresses.
The Ministry’s explanations themselves not only determine the admissibility of storing CVs, but also indicate the conditions that must be met to make it possible. In the case of retention of documents due to possible claims of rejected candidates, the storage period should be as short as possible.
The employer should make a risk assessment of the allegation of discrimination and set a processing time that corresponds to the actual risks, taking into account the experience of claims that have arisen so far. If in a given company so far no allegations of unequal treatment have arisen, for example, several months after the end of the recruitment process, then internal procedures should provide only for a data retention period of several months. However, if a company considers that the risk of claims is high, it may process candidates’ personal data for the full three-year limitation period (e.g., in the case of two clearly equivalent job applications).
– Allowing for the possibility of storing CVs after the end of the recruitment process is not only reasonable, but above all compliant with the labour law, which obliges companies to prevent discrimination, emphasises Dörre-Kolasa.
However, he is sceptical about the need for employers to carry out a risk assessment.
– This means that the periods for storing particular documents after the recruitment process may be different. Basing this risk assessment on previous experience with allegations of discrimination is not reasonable either, because each job candidate may react differently to the rejection of his application. Not to mention that newly established companies have no experience in this area at all – adds mec. Dörre-Kolasa.
It is also permissible to poi

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