Processing of employee personal data during probationary period – what’s not allowed?

The Berlin Data Protection Authority issued a 215,000 EUR fine to a company for the improper handling of employees’ personal data during their probationary period.

To prepare for potential dismissals at the end of the probationary period, a supervisor, on instructions from the company’s management, kept a tabular overview of all employees in the probationary period. The report documented sensitive information pertaining to the health of employees or other personal issues and their interest in forming a works council.

The primary purpose of this list was to facilitate preparations for potential terminations at the end of the probationary period. Most of the data included in this list had been provided by the employees themselves during the course of scheduling work. Most importantly, the employees were not made aware that this information would be subjected to further processing.

Although the official statement from the Berlin Data Protection Authority did not explicitly mention this, it can be inferred that, based on the data collected, employees who displayed a higher level of union involvement or were experiencing personal issues that impacted their work flexibility, were targeted for termination at the end of the probationary period.

#Recommendation: Employers are allowed to consider the extent to which employees should continue to be employed and to this purpose to also process personal data. However, the data processed must be relevant and essential for this specific purpose. It should only pertain to performance or behaviour that directly pertains to the employment relationship. Employers are not permitted to automatically process information provided by employees themselves; instead, they must carefully evaluate whether such processing is both necessary and appropriate.

This article was first published on 26 October 2023 by our Romanian member firm Suciu – Employment and Data Protection Lawyers. For questions around this topic, please reach out to our representative Andreea Suciu, Founder and Managing Partner of the firm.