SERBIA: Data protection in the recruitment process
Newsletter 144
What about non-conviction evidence?
In the process of establishing an employment relationship, it is common practice for employers to require candidates for employment to provide information about their (non)conviction status and any ongoing criminal proceedings. Employers often make the submission of these documents a condition for the establishment of an employment relationship.
This practice of employers represents a violation of the Law on Personal Data Protection (LPDP) and it is also not in accordance with the Labour Law and the Criminal Law of the Republic of Serbia.
According to the LPDP, as well as the official position of the Commissioner for Information of Public Importance and Personal Data Protection, the employer is not authorized to require employment candidates to submit these documents, nor can this be a condition for establishing of an employment relationship. There are exceptions to this rule, namely when the law prescribes that certain jobs can only be performed by individuals who have not been convicted and against whom no criminal proceedings have been initiated.
The LPDP (Article 19) stipulates that the processing of data related to criminal convictions, criminal offenses, and security measures is only allowed in specific situations. Personal data concerning criminal liability or proceedings can only be processed under the supervision of the competent authority or with the application of special measures to protect the rights and freedoms of the individuals to whom the data relates, when other entities are processing such data.
In the context of employment, the employer may only collect and process personal data of candidates that is directly relevant to the tasks they will perform. Requesting data from the criminal record or confirmation of a criminal proceeding cannot be justified under any legal basis from the LPDP, nor under the legitimate interest of the employer, as this type of data processing is not necessary for fulfilling the employer’s obligations regarding the employment of candidates.
Furthermore, requiring candidates to provide such data without a legal basis constitutes a violation of the right to privacy. In accordance with data protection principles, the employer must adhere to the principle of data minimization and the principle of purpose limitation, meaning that only the data essential for achieving the goal of employment should be collected.
According to the Labour Law, the employer cannot require candidates to provide data that is not directly relevant to the performance of the duties for which the employment relationship is being established.
Additionally, the Criminal Law stipulates that no one has the right to require a citizen to submit proof of their criminal record or lack thereof. Data from the criminal record can only be provided upon a justified request by a state authority, company, another organization, or entrepreneur if there is a justified interest based on the law, which is generally not the case for most jobs in the private sector.
Therefore, requesting a criminal record excerpt or confirmation of criminal proceedings from an employment candidate for the purpose of establishing an employment relationship constitutes a violation of the Law on Personal Data Protection and the candidate’s right to privacy, unless it is explicitly required by law or specific regulations governing certain types of positions (e.g., in public administration, police, educational institutions). Furthermore, such a request is not in accordance with the Criminal Law or the Labour Law of the Republic of Serbia.
For more information on personal data protection, you can contact us via email at jelena.todorovic@tsg.rs or office@tsg.rs