Personal data is any information that relates to an identified or identifiable person. From the moment the application is received until the end of the employment contract, the employer processes the employee's personal data. For example, the employer needs to know the employee's contact details, AHV number, diplomas or the number of dependent children in order to carry out administrative tasks.
However, some data is more sensitive than others. If they are not necessary for the execution of the employment contract, the employer is in principle not allowed to process them.
Diplomas, language skills, nationality, hobbies... The applicant's curriculum vitae is a gold mine of information for a future employer. It is personal data, and sometimes sensitive data at that. The employer must treat it with care.
They can only ask questions about personal data that are relevant to the job. Questions about pregnancy or the desire to marry or have children are in principle illegal. The employer can be accused of discrimination in hiring and be sanctioned.
The trend for employers is to do a Google search on the job applicant. When the employee is not careful, he/she sometimes makes public personal information (marriage, child) or compromising information (photo of a party with too much alcohol). Is this personal data? What does the employer risk if he refuses to hire a candidate because of this information?
Criminal record and financial situation
The applicant's criminal record and the excerpt from the lawsuit are confidential, personal information. In principle, the employer cannot process this data. In exceptional cases, the employer may ask a candidate to provide a criminal record or an extract from a court of law if this information is directly related to the job in question.
The former employer is obliged to provide references when requested by the employee. But be careful! Certain data concerning, for example, health, family situation or pregnancy are particularly sensitive. The communication of such data is in principle forbidden.
The communication of other data, such as the employee's behavior within the company or the quality of his work, is lawful provided that the employee consents. It is not always easy to determine whether the employee has given valid consent. In some situations, consent may be presumed.
Health and the job interview
Information about a candidate's health or pregnancy is personal and sensitive. It deserves to be protected and kept confidential. The employer can only ask questions about this during the job interview if the job requires specific physical abilities.
Alcohol and Testing
Sometimes the employer has reason to suspect that the employee is under the influence of alcohol because of, for example, inconsistent speech or behavior. Whether or not an employee can be tested for alcohol, whether for the safety of co-workers or customers or for termination of employment, will depend on the employee's job function.
The result of the test is personal and sensitive information. The employer must have important objective reasons to request such a test. He or she must also follow a strict procedure.
Disclosure to third parties
In principle, the employer must ask for the employee's consent before disclosing his personal data to third parties. This principle prevails unless there is a law that expressly authorizes the employer to disclose such information. However, the disclosure of sensitive personal data is fundamentally prohibited.
The employer is sometimes tempted, in order to protect his or her interests, to monitor his or her employees or their use of work computers and laptops. The employer has legitimate interests, such as the security of customer data or the desire to prevent employees from spending their days surfing the Internet. They also sometimes want to separate business calls from private calls so that only the employee's business expenses are reimbursed.
However, when employees consult private websites during their breaks or send personal messages, this is personal data even if they use professional tools. Moreover, when it concerns political, union or religious sites or social networks, this data is sensitive.
An employer who wishes to set up surveillance must follow a strict procedure and establish a directive. If they do not, they risk violating the employee's personality and incurring liability. The data collected will be unlawful. This situation is all the more delicate when the employee uses his private phone or computer for professional purposes or vice versa.
During the employment relationship, the employer creates a file that contains all the personal information of the employee. From contact information to warning letters, the data that can be collected is diverse and varied.
The employee has the right to consult and receive a written copy of his personal file. However, it may be an abuse of right when the employee tries to collect evidence for a proceeding against his employer.