trends legal magazine

Employment Law No 6

ITALY | COCUZZA & ASSOCIATI LAW FIRM

ITALY | Hiring process and sensitive information in Italy

It is not easy to strike a balance in recruitment: on the one hand, the employer’s legitimate interest to know as much as possible about the candidate in order to understand if he/she is the right person; on the other hand, the employees’ equally legitimate expectations of privacy.

In this scenario, a new element of destabilisation is represented by new technologies that bring opportunities and risks for both sides.

How do I handle the issue of background checks, including those involving sensitive personal data such as criminal records?

At all stages of the recruitment process, the law requires the employer to refrain from any kind of prejudicial or discriminatory behaviour.

The prohibition covers investigations into political or trade union opinions or facts that are not relevant to the assessment of the employee’s abilities.

For example, it is forbidden to carry out preventive checks on pregnancy or HIV status, except in the case of tasks involving a risk to the safety, security and health of the employee or third parties.

The prohibition also applies to criminal record checks, except in the case of specific tasks or the particular nature of the employment relationship.

Are there particular issues in checking candidates’ social media profiles?

Employers are allowed to process the personal data of applicants only to the extent that the processing of such data is necessary and relevant to the performance of the job for which one is applying. The individual must also be properly informed of such processing before engaging in the recruitment process.

Can I ask candidates about their Covid-19 vaccination status?

The employer is responsible for ensuring health in the workplace (Art. 2087 of the Civil Code) and not for individual employees.

However, even the latter does not have the right to ask questions about vaccinations, either at the time of the job interview or at a later stage. The company doctor is the person in charge of assessing the employee’s suitability for the job, and then communicating it to the employer: therefore, the doctor himself can ask the employee for ‘health’ information.

If, on the other hand, one is in a workplace for which a law requires vaccination against Covid, it is the employer’s responsibility to ensure that all his or her employees are vaccinated. So, when it comes to categories of employees for whom the mandatory vaccine has been provided, the employer’s request is entirely legitimate. And this also applies in the job interview before recruitment: the employer or employee may well ask for a vaccination certificate if the candidate is on the list of those for whom the vaccine is mandatory.

Are employees entitled to lie or to omit information; if information is subsequently found to be false, what can I do?

In the case of lies during the application process, when these were decisive for recruitment and are relevant to the continuation of the employment relationship, the employer is free to exercise disciplinary power and thus: formally challenge the circumstances to the employee, asking for justification; wait for the justification and adopt the disciplinary sanction deemed most appropriate (including dismissal).

How should I deal with the personal data of unsuccessful candidates

Data collected during the recruitment process should generally be deleted as soon as it becomes clear that a job offer will not be made or is not accepted by the person concerned.

Written by:

Domenica Cotroneo, Lawyer in charge of labour law department

rtirone(et)cocuzzaeassociati.it

Article from – TRENDS Employment Law No 6

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