The Legal Validity Issue of Explicit Consent Given by Job Applicants in the Recruitment Process
Att. Hazar Can Kıpçak*
In today’s world, the collection and processing of our personal data by various institutions and organizations has become increasingly inevitable in all areas of life. In order to prevent the uncontrolled processing of personal data for various reasons and purposes and to ensure individuals’ privacy, international and national regulations have been enacted. However, in some cases, the imbalance between the data controller and the individual gives rise to certain problems. For example, it is accepted that workers who work under an employment contract and are dependent on an employer are in a weaker position compared to the employer. Therefore, it has been emphasized through high court decisions that workers should be prioritized and protected against employers. Especially with the increasing advancements in workplace practices such as performance measurement, surveillance technologies, and working hours tracking, the processing of workers’ personal data has become inevitable. One of the main problems encountered in the processing of personal data in the workplace is the validity of the explicit consent given by job applicants who are concerned about not getting the job. Employers are data controllers in terms of the personal data of job applicants. The Personal Data Protection Law No. 6698 prohibits the processing of personal data without explicit consent, except for some exceptions. It is important that this explicit consent is given freely and voluntarily by the individual. If this will is impaired by deception or intimidation by the data controller, then the explicit consent cannot be considered valid. It is evident that even an employee who is protected by an employment contract is in a weak position, and therefore, the validity of the explicit consent given by job applicants under the fear of not being hired should be carefully evaluated. When it comes to data processing activities based on the job applicant’s explicit consent, the possibility of not giving consent should be effectively ensured for the job applicant. Since the explicit consent given by a job applicant under the concern of not being hired cannot be considered valid, practices that would create the expectation of a possible negative outcome should be avoided.
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Keywords: Employees, personal data, explicit consent, employee candidate, hiring
* Kıpçak & Kıpçak Law Office