Working through an employment agency

Calling in sick with the employment agency

If you call in sick with an employment agency, it may only request data that are necessary to assess how it must proceed with your duties. For example:

• when you expect to be back at work;
• whether there are current appointments that require action.

The employment agency can also ask the occupational health and safety service or company doctor to assess what you can still do. The employment agency is not allowed to ask what exactly is wrong with you and what the cause is.

Information in your personnel file

The employment agency may include data about you in a personnel file. In this file, the employment agency keeps all data that are necessary to perform the employment contract with you. This includes your contact details, salary, a copy of your identity document and your citizen service number (Dutch: BSN).

The employment agency is usually not allowed to include data about your health, criminal data and data about your race/ethnicity in your personnel file.

Special categories of personal data

For example, do you wear a headscarf? The employment agency may not include this in your file. It says something about your religious beliefs and that is a special category of personal data. Organisations are not allowed to use special categories of personal data unless there is a legal exception. Data about your health and your race/ethnicity are also special categories of personal data.

Screening agency workers

If the employment agency wants to screen you or have you screened, this can be very intrusive on your privacy. That is why the employment agency may only screen you if it meets certain (statutory) conditions. These conditions are intended to protect your privacy.

The most important conditions for screening:

• the employment agency has a legitimate reason (legitimate interest) for screening;
• screening is necessary for the position in which you will work as an agency worker;
• the employment agency will inform you about the screening process.

Furthermore, during the screening process, the employment agency may only request data about you that are relevant to the position. And your health should never be the subject of screening, unless the law stipulates a medical examination for the position.

If the employment agency carries out the screening for a client, the employment agency may need a permit. This is stated in the Private Security Organisations and Detective Agencies Act (Dutch: Wbpr).

Mandatory screening

Screening is required by law for some positions, such as jobs in childcare. In this case too, the employment agency must meet the conditions for screening under privacy legislation.

Transferring criminal data

Your employment agency can determine whether you are suitable for a particular position before you start working for a client as an agency worker. In principle, it is therefore not necessary for the employment agency to transfer your criminal data to the client.

The employment agency may only transfer criminal data to the client if this is necessary. In addition, the employment agency must first check whether the purpose of transferring your criminal data is proportionate to the invasion of your privacy. And whether there is another way to achieve the purpose that is less detrimental to your privacy.

Wpbr permit

If your employment agency wants to carry out a pre-employment screening (PES) for you as a (prospective) employee, it needs a permit under the Wpbr. This permit allows your employment agency to process criminal data for someone else (the client) when carrying out a PES.

Retention of agency worker’s data

Employment agencies must comply with the law when retaining the data of agency workers. Different statutory retention periods apply. For example, those ensuing from tax laws.

Your employment agency may only retain your data if this is necessary. For example, for the statutory retention periods. If there is no need to retain the data (any longer), the employment agency must destroy your data.