Treatment of personal data in employment and employment contracts
Criminal records of the applicant
Information on a criminal records is considered information on a criminal act and is subject to special rules in the data protection legislation.
Therefore, it can be considered a matter of law to request a criminal record certificate for those who carry out certain activities, although this is not at all self-evident. Examples of when a job is of a nature that would be justified to request a criminal record certificate would be for example work where children are worked.
Rights of the individual
Gathering information
It must always be taken care that those seeking employment know that such a certificate will be requested beforehand. Otherwise, the information gathering might violate the fairness requirements of the Data Protection Act. This can be ensured, for example, by stating in a job advertisement or similarly that a criminal record certificate will be requested.
Processing of information
According to the data protection legislation, private parties may not work with information on criminal records unless the employee has given their explicit consent or the processing is necessary in the interest of legitimate interests that clearly outweigh the employee’s fundamental rights and freedoms.
The processing must always be based on one of the sources of the processing of general personal data, such as contracting, legal obligations, legitimate interests or other factors.
Sharing information
The information may not be shared unless the individual expressly consents to do so. However, information may be shared without consent if it is necessary for the legitimate public or private interests that outweigh the secrecy interests of the information, including the interests of the individual.
Disposal of information
Consideration must be given to how the certificates are handled when a decision on employment is made. For example, it may be possible for the applicant to show a criminal record certificate but keep it for themselves and the employment agent to register whether the person concerned meets the requirements or not. However, if the certificates are submitted, consideration must be given to the fact that non-relevant parties do not have access to them and after the employment has been completed, they must be disposed of safely or returned to the applicant.
