articles - Labour and employment law

According to the Personal Data Protection Authority (“DPA”), employers may not process employees' biometric data to record working time. However, this does not mean that employers may not use such data for other purposes.

The dangers caused by COVID-19 result in many employers unilaterally introducing measures to protect their employees from falling ill with the virus. For example, they measure their temperature before they enter the workplace or ask them to complete declarations stating where (in which country) and with whom they spent their holidays. As a result, a number of personal data is collected, including special categories of personal data (concerning health). An extraordinary situation, however, does not entitle employers to take completely arbitrary action.

Almost two years have passed since the GDPR came into being and yet many employers are still unaware that special regulations were introduced to the Workplace Social Benefits Fund Act which impose on them numerous obligations related to the processing of personal data for the purposes of granting benefits from the Workplace Social Benefits Fund (Zakładowy Fundusz Świadczeń Socjalnych, ZFŚS).

Some time has passed since the Polish Labour Code was adjusted to the provisions of the EU’s General Data Protection Regulation, but some issues remain unclear. Problems with interpretation of the provisions arise at the stage of recruitment and determining which personal data of candidates may be collected and processed by prospective employees. Doubts are raised for example by the issue of the permissibility of obtaining residential addresses from job applicants.

Since January 2019, employers may keep their employees’ records in electronic versions. However, labour law regulations do not define the concept of electronic version. Nonetheless, certain guidelines are to be found in the provisions of the Labour Code and the regulation dated 10 December 2018 of the Minister of the Family, Labour and Social Policy on employee documentation specifying the requirements related to changing the version of employee documentation from paper to electronic.

Amendments to the Polish Labour Code in force since May 2019 resolved the existing doubts as to the admissibility of obtaining employees’ consent to processing of their personal data by employers. Before, the courts had held quite clearly that if an employee’s consent to processing of his personal data were considered a circumstance legalising the gathering of personal data from an employee other than those specified in Art. 221 of the Labour Code, that would constitute a breach of that provision and a circumvention of the law (Supreme Administrative Court judgments of 1 December...