Candidate screening is a normal and widespread practice for an employer, but the law establishes clear limits to prevent interference with privacy, violation of personal data protection principles, and labor rights of the future employee.
In the article, the expert explains which checks are legal, when a candidate's consent is required, and how an employer should act when an applicant refuses an additional check.
Life situation:
A man wants to get a job as a driver-forwarder at a logistics company. The company wants to check the candidate for the absence of criminal records and offenses, since the job involves responsibility for expensive goods. The candidate provides copies of documents, but refuses to undergo additional verification by the commercial security service. The company has doubts whether the data he provided is sufficient and whether it is possible to insist on a broader verification. How not to violate the rights of the candidate, but also not to let a dishonest person to work?
When vetting a candidate, an employer must be guided by such basic legislative acts as the Constitution of Ukraine, the Labor Code of Ukraine, and the Law of Ukraine On the Protection of Personal Data.
Can reference checks be conducted without the candidate's consent?
No, you can't. Contacting a former employer for a reference or recommendation is effectively the collection of personal data about a candidate, as well as the transfer and receipt of the candidate's personal data to and from third parties. Pursuant to the Law of Ukraine «On Personal Data Protection» (Clauses 5 and 6 of Article 6, Clause 1 of Article 11 of the Law), processing (including collection and dissemination) can only be performed with the candidate's consent or in the presence of a separate legal basis, which does not exist in this case.
The best solution is to obtain written consent from the candidate to collect recommendations, specifying which exact previous employers the company may contact.
Can the employer demand a police clearance certificate?
It depends on the position. Article 24 of the Labor Code of Ukraine defines the list of documents that an employee submits upon employment, and a police clearance certificate is not among them. Moreover, Article 25 of the Labor Code of Ukraine explicitly prohibits demanding from a candidate any documents or information not provided for by law. At the same time, there are professions for which the absence of a criminal record is a mandatory requirement under the law. These include, for example, educators, civil servants, employees who deal with weapons, narcotic drugs, or perform functions that require special trust. In such cases, the employer not only has the right, but even obliged demand a certificate.
Regarding the driver-forwarder in the described situationThe employer cannot demand a certificate by force, because the law does not provide for this. However, they can ask to provide it voluntarily, explaining this by the fact that the job involves financial liability and access to valuable goods.
Is it allowed to check a candidate's credit history?
Not without the candidate's consent. Information about credit history is usually not directly related to an employee's professional duties. Specifically, the requirement to provide such information will be regarded as excessive, but an employer may ask a candidate to provide such a certificate or grant permission to obtain this information. Such a request may be justified and logical for positions related to:
- access to significant financial resources;
- fund management;
- making financial decisions;
- responsibility for material assets.
For example: Chief Financial Officer, accountant, cashier, AML manager, bank employee.
Does the company have the right to analyze a candidate's social media profiles?
Yes, the company can review a candidate's social media, but only the information that is publicly available. However, the employer does not have the right to:
- request access to closed pages;
- to demand «to add as a friend»;
- log in from fake accounts.
Also, the employer cannot refuse employment based on information from social media if it concerns political views, religion, marital status, or other characteristics for which discrimination is prohibited (Articles 2-1, 22 of the Labor Code of Ukraine).
What data categories are considered excessive?
Overall, Any data that is not directly related to the performance of future labor duties is excessive. Article 25 of the Labor Code of Ukraine explicitly prohibits demanding information about:
- political affiliation, nationality, origin;
- registration of place of residence or stay.
To this list, based on the provisions of Article 2-1 of the Labor Code of Ukraine and Article 7 of the Law of Ukraine «On Personal Data Protection», one can also add:
- information on religious or worldview beliefs;
- data regarding personal and family life (for example, the question «Are you planning a pregnancy?»);
- information on health status (except when such information is mandatory for the given position);
- biometric data (unless required by the specifics of the access regime at the facility);
- information on gender identity and sexual orientation;
- other categories determined by the legislation.
When can a company engage a third-party security service?
Exclusively subject to the candidate's separate, informed, and voluntary written consent. Involving a third-party security service constitutes the disclosure of a candidate's personal data to a third party and is possible only with the person's consent (Article 14 of the Law of Ukraine «On Personal Data Protection»). At the same time, it is important that the candidate's consent must be:
- Informedthe candidate must clearly understand to which company the data is being transferred and what volume of information will be checked.
- SpecificallyA «vague» item in a questionnaire or other document like «I consent to a background check» is insufficient.
And the employer must simultaneously ensure the confidentiality of the transfer of such data to a third party.
Can a candidate's refusal to undergo additional verification be grounds for refusal of employment?
Under certain circumstances, yes.
If it comes to legally mandated audit (police clearance certificate, medical examination), in that case, the candidate's refusal will be a legal ground not to hire them.
However, if the verification is not required by law or by the nature of the work, the candidate's refusal cannot be the ground for refusal of employment.
Moreover, such a refusal would be a violation of Article 22 of the Labor Code of Ukraine, which prohibits unjustified refusal.
Regarding the driver-forwarder
The company cannot formally refuse employment by stating the reason: «Refusal due to unwillingness to undergo a security check.» At the same time, the employer has the right to make a decision by evaluating all available information. If a candidate does not provide additional details (for example, a certificate of no criminal record or consent to a check), the employer is effectively deprived of the opportunity to ensure that the candidate meets security requirements. In such a situation, the justified grounds for refusal will not be the refusal to undergo the check itself, but «the candidate's failure to meet all the requirements established for this position.».
At the same time, it is important for the company to have clearly defined job requirements – otherwise, in the event of an appeal, there is a risk of losing the court case.
