Many employers want to know if the applicant for a job had any criminal history before they make the hiring decision.

In Poland, the employer’s access to the applicants’ criminal history is limited only to situations provided for in the Act on the National Criminal Register, which keeps the history of convictions. The employer may be granted access to the National Court Register only when the law requires that the applicant for a given position has not been subject to criminal punishment or deprived of public rights. The employer is also authorized to check the National Criminal Register to see if the applicant has the right to occupy a particular position, do a particular profession or run a particular business.

In other situations the employer may not formally require the applicant to supply information of previous convictions. In practice, employers ask for such information, which is said to be provided on a voluntary basis and thus endorsed to be used in a hiring decision.

There are disputes among academics whether the employer may rely on information provided voluntarily in the hiring process. Some say that under the applicable provisions of the Labour Code the employer is entitled only to a limited set of the applicant’s personal data, which does not contain criminal history. Hence, the employer must disregard any information on previous convictions given by the employee, even if on a voluntary basis. Though I can find some theoretical arguments in favour of such a stance in the existing provisions of law, I cannot but see that it is entirely contrary to what the practice calls for. I surely understand employers who are hiring e.g. a person supervising a cashier at a bank and wish to know whether he or she has any criminal history regarding misuse of money.

In any case, employers who obtained information on the applicant’s previous convictions must remember that it is ‘sensitive data’ under the Act on Protection of Personal Data. As a result, the applicant must provide written consent to processing the information for hiring purposes.

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