Czech Republic: Protection Of Personal Data In Employment Relationships

As controllers of personal data, employers are required to secure the rights of employees as data subjects in accordance with the General Data Protection Regulation applicable in the European Union. With specific provisions, the Czech Labour Code supplements the obligations set out in the GDPR in order to provide protection specifically tailored to the context of processing personal data within employment relationships.

 

Personal Data Protection Prior To Employment

The Czech Labour Code maintains the principle of autonomy of will by allowing employers to choose their employees as they need. However, whilst assessing candidates for a job position, this liberty is limited by Section 30(2). It stipulates that employers may only request information directly related to the conclusion of an employment contract whilst in negotiations with a potential new employee. Candidates typically provide basic personal data such as their name, birthday and contact information, but employers are also entitled to documents proving the fulfilment of requirements specific to the job position, e.g. university diploma. The extent of personal data that the employer may request from a candidate thus depends on the job position, but nevertheless the employer must have a legal title to do so and must inform the candidates about the extent of processing of their personal data. Personal data shared by candidates beyond the scope of the employer’s request shall not be further processed.

Personal data of unsuccessful candidates need not always be deleted promptly. Employers may retain the personal data of unsuccessful candidates for the purpose of contacting them regarding future job opportunities. However, employers must have explicit consent from them to be able to do so. Such consent shall not be deemed given automatically by virtue of responding to a job advertisement. Candidates must actively consent to the retention of their personal data even after the recruitment process.

 

Personal Data Protection During Employment

Pursuant to Section 316(4) of the Czech Labour Code, employers shall not require from employees or candidates information that does not directly relate to the performance of work and the basic employment relationship, in particular information on pregnancy, family and financial circumstances, sexual orientation, origin, trade union membership, membership in political parties or movements, affiliation with a church or religious society, and criminal record. The prohibition is absolute with respect to sexual orientation, origin, trade union membership, membership in political parties or movements, and affiliation with a church or religious society. For the remaining categories, an exception may apply where there is a substantive reason consisting in the nature of the work to be performed and the requirement is proportionate, or where so stipulated by law. This also correlates with the prohibition of processing of special categories of personal data as established in Article 9 of GDPR.

Employers commonly install camera systems at their workplaces. The Czech Labour Code prohibits employers from infringing on the privacy of their employees at workplaces and in common areas by subjecting them to open or secret monitoring, tapping and recording of their telephone calls, control of e-mails and letters addressed to them. This prohibition shall not apply where there is a serious reason consisting in the special nature of the employer’s activity. This provision is mandatory in nature, meaning that even the employee’s consent cannot substitute for the statutory condition of the exception. Where such a reason exists, the employer shall be required to directly and beforehand inform the employees of the scope and manner of the implemented control mechanism. Employers shall also consider whether the selected control mechanism is capable of fulfilling the declared purpose and whether there is not a suitable method that would be less invasive to the right of privacy of the employees.

Key Action Points for Human Resources and In-House Counsel

• Employers may only request information directly related to the conclusion of an employment contract while in negotiations with a potential new employee.
• Employers may retain personal data from unsuccessful candidates for the purpose of contacting them again in the future about another job, but only with their explicit active consent.
• Employers shall not require from employees or candidates information on their pregnancy, family and financial circumstances, sexual orientation, origin, trade union membership, membership in political parties or movements, affiliation with a church or religious society, or criminal record, subject to limited exceptions for certain categories where a substantive reason consisting in the nature of the work exists.