The Warsaw Voice » Advice from Law Firm » Monthly - June 29, 2012
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Hiring an Employee in Poland: What an Employer Can Ask from a Candidate?
   
Every employer is looking for a perfect applicant, representing the highest level of knowledge and moral values. To reach that objective, many employers concentrate their efforts on a “pre-employment check.” Many are also interested in checking criminal backgrounds. But just what is allowed under Polish law, and what is considered to be going too far?

Polish employment law concentrates on protecting the private lives of employees and candidates, and therefore limits the rights of potential employers to information and documents that can be required during the recruitment process. The recruitment process is not seen as a reason to obtain information about the candidate’s family life, interests, earnings, property, reputation, private life or approach to work.'

In comparison with other countries, these limitations are significant, and only the following can be obtained:
- full name;
- parents’ first names;
- date of birth;
- current address, and address for correspondence, if different;
- details of education, limited to school details, the year of graduation, and qualifications obtained;
- details of employment history (limited to the names of former employers, the duration of employment and positions or responsibilities held).

The education and employment history may also cover:
- information on additional educational programs and training;
- information on postgraduate education or additional qualifications, skills and experience (required for a given position)
- information as to whether the applicant is unemployed (as of the date of submitting the job application).

The potential employer is also entitled to request originals of documents confirming the qualifications, such as certificates, diplomas, originals of employment certificates confirming the previous employment and position, a medical checkup confirming that the employee is able to work in a given position (with given duties). Providing false information during the recruitment process can justify the discontinuance of the recruitment proceedings.

The potential employer may ask an applicant for additional information, and the applicant may, at his or her own discretion, present additional documents confirming his or her professional career and additional achievements. However, this opens the question of how the potential employer will evaluate the information and documents, or a refusal to provide them. Will presenting additional information in a discretionary manner be a decisive factor for employing the applicant? Will it be discriminatory to offer the position to an applicant who is more open to presenting his or her achievements? It requires an analysis of each individual case, but the legal risk of a candidate’s discriminatory claim is not minor, if it can be shown that the potential employer’s decision was based on additional information obtained about the applicant. An additional question is whether the applicant may request information on why he or she was or was not selected from the company.

The answer to this last question was given by the European Court of Justice. The Court stated that the regulations of the European Union did not provide for an applicant’s right to information on whether another person was employed in the advertised position, where the unsuccessful applicant showed that he or she meets the requirements for the advertised position, but was not offered the job. However, if the employer refuses to disclose the requested information, this fact should be taken into account when determining allegations of discrimination (case C-415/10, Galina Meister/Speech Design Carrier Systems GmbH).

In addition, the potential employer is allowed to verify whether the information and documents presented were indeed issued by the respective authorities (e.g. university diploma or work certificate) and to contact such authorities directly. Obtaining references from previous employers or work colleagues should be considered carefully. The actions of the potential employer are limited not only by the strict provisions of the Polish Labor Code, but also the general provisions of civil law on a person’s dignity and the protection of privacy.

The potential employer is not authorized to directly conduct medical checkups of applicants. Applicants cannot be asked to take a drug or alcohol test. An initial medical check is conducted by an occupational medicine doctor, who issues a statement that the applicant may perform work in a given position with given duties, but no drug or alcohol analysis is initiated. The potential employer can ask the applicant to provide such information on a voluntary basis, but must justify its legitimate interest in obtaining the information. However, this may be treated as a violation of the candidate’s good name and dignity, and so a refusal cannot form grounds for eliminating the applicant from the recruitment proceedings.

Information on criminal convictions cannot be required from a job applicant or an employee. A criminal clearance form can be requested only if the information is specifically required by law, for example with respect to a position requiring a license.

Joanna Jasiewicz advocate at Gide Loyrette Nouel law firm

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