In certain areas of business, it is an essential requirement for employment and to perform a professional activity to provide the employer with a negative criminal background certificate. This is the case, for example, in work with minors and jobs related to private security. However, is there a legal reason to refuse? Is it a legal requirement that could breach a worker’s specifically protected fundamental rights?
The issue was subject to legal analysis by the Labor Chamber of the National Court in its judgment of February 10, 2020.
The judgment goes even further, given that rather than a negative criminal background certificate, it questions a responsible declaration by the worker himself. The request is made under the framework of a business succession in services contracts (private security companies): can the incoming company require a responsible declaration from the employees of the outgoing company that they do not have a criminal record in their country of origin in the last five years prior to the subrogation?
The plaintiff trade union’s principal claim was that the request for such a declaration was in breach of the workers’ fundamental right to privacy, as well as to the protection of personal data, due to its sensitive nature.
On the contrary, the defendant company claimed that: (i) it was requesting a personal declaration and not an official certificate, and (ii) the employees that never provided it were neither reprimanded nor penalized.
The National Court based its analysis of the case on the regulations governing the performance of private security functions.
The judgment recalled that the absence of a criminal record is a legal requirement to obtain an administrative qualification to work as a private security guard, the so-called Professional Identity Card (TIP). Nevertheless, the negative criminal background certificate is provided to the competent authorities and not to the employer (who would receive the valid TIP ). Therefore, the TIP is a legal document that proves to the employer that an employee does not have a criminal record.
The National Court highlighted the fact that there are no regulations that provide for the obligation to submit a criminal background certificate or personal declaration in a case of succession in services contracts. In addition, the business succession, in legal terms, would not be compromised in the event the employees did not make the declaration required.
Under the perspective of personal data protection, according to the judgment itself, the employer could request a personal declaration, provided: (i) “it is necessary to perform the employment contract”, and (ii) “there is a legal regulation that entitles the company to request it”.
These two premises are not met in the case judged by the National Court, which would lead to the requirement for the worker to submit a responsible declaration being unlawful.
In short, the employer could require a criminal background certificate without breaching the worker’s fundamental rights to privacy and personal data protection when:
- There is a legal regulation that obliges the employer to require the certificate or a declaration to perform the work for which the worker is to be hired.
- It is necessary to comply with the employment contract.