The Supreme Court of Cassation, by Order no. 17167/2020, considered the personnel selection process that requires involved candidates to produce their criminal status certificate as lawful.
Facts of the case
The facts in question regard a company’s failure to hire a candidate who had previously worked there with a temporary employment contract. Specifically, the worker, at the end of the first contract, had manifested his interest in a different position for which he had undertaken the selection process, signing a “declaration form identifying the job of interest.” He confirmed in it, among other things, that the hiring would have been subject to the presentation of all of the documentation required by the sector NCLA. The criminal status certificate was included in the documentation requested by the company, that the employee refused to submit.
The Court and the Court of Appeal petitioned by the worker had found that the sector NCLA did not list the criminal status certificate among the documents to submit during the selection phase. In light of this the company could not have considered the submission of criminal status as a prohibitive condition for hiring the candidate.
Objecting to the lower court’s ruling, the losing company appealed to the Cassation Court.
The Supreme Court of Cassation’s ruling
The Court of Cassation took a different position in relation to the lower court judges, confirming that the employer must always be allowed to make a free evaluation of the suitability of a candidate to fulfil the duties for the position to be filled. The employer determination of the requirement of submission of criminal status, according to the Cassation judges is lawful, it is “consistent with the general principles of fairness and good faith which govern even the performance of the precontractual phase concerning employment”. Therefore, recognition of the right to verify the suitability of the candidate cannot be limited by the lack of specific provision in the national collective bargaining agreement applied to the case in question.
Thus, the Court of Cassation recognised the company’s decision not to continue with hiring the candidate as lawful, due to the failure to deliver the criminal status certificate. This is due to the fact that the latter would not have been in possession of the suitability requirements to meet the reliability needs necessary for filling the vacant function.
Hence, according to the Court of Cassation judges, the employer may unilaterally formulate the request to submit certain documents as long as they are functional for evaluation the suitability or lack thereof of the candidate in relation to the position to fill. This determination is not contrary to the principle of fairness and good faith which must also govern the precontractual phase of the selection process.
Other insights related:
The requirements relative to the processing of special categories of data have been issued
