Sensitive personal data

Notion

According to the Data Protection Act, sensitive data includes information on the political or religious opinions, health, personal life and possible criminal proceedings of the person concerned. Within the framework of the employment relationship and upon receipt of the application file, the employer is likely to have knowledge of the employee's personal data.

The processing of such data is particularly sensitive. The employer may only process such data insofar as they relate to the employee's suitability for the job or if they are necessary for the performance of the employment contract. The processing of such data may also be justified by an overriding interest of the employer or the consent of the employee.

Application

Contact details, hobbies, political mandates... The resume of applicants is full of valuable information for a future employer. Some of this information is sensitive personal data. The employer cannot take all the measures he or she deems necessary to verify this information, including Internet and social network searches. When asked by a potential employer for references, the employer may not, in principle, reveal sensitive personal data about his or her former employee, such as pregnancy or work incapacities, except in special circumstances.

Health status and pregnancy

Data concerning an employee's health status or pregnancy are particularly sensitive and must remain confidential. There are, however, special situations in which the employer may ask questions about the state of health or pregnancy wishes of an applicant for a job. This is the case when such data is directly related to the employee's job.

Communication to third parties

Marital status, number of dependent children, nationality, criminal record, indebtedness... The employer sometimes has knowledge of particularly sensitive personal data. The employer may not communicate this information to third parties without the employee's consent, unless there is a law that allows it.

The disclosure of personal data abroad is particularly problematic if the country in question does not offer adequate data protection.

References

A potential employer calls a candidate's former employer to ask for certain information. These references are important for both the prospective employer and the candidate.

However, the employer must be careful. Certain data, particularly concerning the employee's state of health, are particularly sensitive. The employer risks incurring liability.

Personal file

Every person has the right to ask to consult and receive a written copy of their personal file. When the employee requests it, the employer is in principle required to provide it. This right of access sometimes constitutes an abuse of rights, especially when the employee seeks to gather evidence for a lawsuit against his or her employer.

Epidemic/Pandemic

In the event of a pandemic, the employer must take measures to protect the health of his or her employees. Employers may be tempted to require employees to undergo medical tests or to be tested in order to prevent contamination of employees within the company and of customers.

Whether it is for the purpose of organizing a vaccination session in the company or for prevention purposes, the employer has an interest in knowing whether his or her employees are vaccinated, whether they wish to be vaccinated or the reason why they refuse to do so.

Health status is sensitive personal data. The question of whether the employer can demand the result of a screening test or whether the employee is vaccinated or not is a sensitive one.

Internet and cell phones at work

When not prohibited by the employer, it is common for employees to use the work computer or cell phone to conduct private Internet searches or send private messages. Social networks, political sites, private messages to the spouse... This data is personal and sensitive. If the employer wishes to monitor Internet and laptop use at work, he or she must follow a strict procedure and establish a policy.

Employer’s sensitive data

If the employer is aware of the employee's personal data, the employee may also be aware of the employer's sensitive data. This includes customer lists, business secrets and the company's financial situation.

The employee is bound by a duty of confidentiality. In order to best protect him/herself, the employer will ensure that a diligence, loyalty and confidentiality clause is included in the employee's employment contract.

For certain functions, the employer may enter into a non-competition clause with the employee in order to prevent him/her from using the company's sensitive personal data for the benefit of other competing companies. The non-competition clause is however subject to numerous conditions of validity.