Can the employer keep the personal data of candidates who were not chosen?
#LawAnswered
The recruitment process for many companies is expensive and complex. They might get a lot of CV’s but they have to decide only for one candidate. But, it is not always an easy decision and if it does not work for the chosen candidate, they would be happy to call the other candidates who were not chosen.
Sometimes this is a great call to have for the person who applied for the job, but do you want to get this call after six months or a year, when you are already well settled to your job? And most importantly, is this legal for the employer who is calling and basically admitting that it did not work with the candidate who chose instead of you?
The answers on this lay in the Law on personal date protection of North Macedonia and when it comes to processing data of the candidates who are not chosen, we must consider the basic principle of the Law, stipulated in article 10 of the Law – the Lawfulness of processing.
This principle clearly states that the processing shall be lawful only if and to the extent that at least one of the following applies:
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- the data subject has given consent to the processing of his or her personal data for one or more specific purposes;
- processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;
- processing is necessary for compliance with a legal obligation to which the controller is subject;
- processing is necessary in order to protect the vital interests of the data subject or of another natural person;
- processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
- processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.
When it comes to the job candidates and the personal data included in the job application, we have to have an answer to the question: “is the processing of this personal data necessary for the performance of an agreement to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract and/or processing of personal data is necessary in order to protect the vital interests of the data subject or of another natural person?”.
Having this in mind and the anaswer to the above question, we have to accept that for the candidates who were not chosen but the controller still wish to keep the personal data, considering that the employement position is filed, a seperate consent from the data subject shall be requred.
In relation to this, the article 11 of the Law must be considered and the controller must be able to demonstrate that the data subject has consented to processing of his or her personal data.
Based on this, if you want to call your candidates who were not chosen, make sure you have their consent, or in other words, make sure that they agree to be called and have that on paper.
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The above text is for information purpose only. It’s content cannot be cosnidered a legal advise. Please consult a lawyer for more specific legal information.
Author: Attorney Martin Boshkoski