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1 Studia Prawnicze

1 2011

1 Korga M.

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Processing of biometric information of employees in the light of the decision of theSupreme Administrative Court dated December 1, 2009 (I OSK 249/09)

100%

Korga M.

Studia Prawnicze

2011

nr 1(187)

125-142

The decision of the Supreme Administrative Court (hereinafter referred to as "SAC") dated December 1, 2009 ( I OSK 249/09, LEX 553777) is the first ruling which raises the issue of processing biometric data of an employee by the employer in regard to Polish law. As a result of advancement in new technologies and means of communications over the past few years, as well as progress in the development of practices of work performance, the provisions of law in force applicable to personal data processing in employment relationships (Article 221 of Labour Code, in particular) have been out of touch with the demands of the contemporary world. The decision of the SAC dealt with the relation between the provisions of Labour Code and Personal Data Protection Act, combined with the issue of biometric data and the positions of respective parties in the employment relationship. It seems that SAC assumption that an employee who was asked to give consent for processing his personal data (biometric data in this specific case) was in an inconvenient situation was fundamental to the decision on the case in question. The employee's freedom to give consent or not is questionable in principle. SAC concluded that for the aforementioned reasons, the catalogue of data that employer was allowed to require from the employee was limited in the Labour Code. Furthermore, the SAC stated in the justification for the decision that the practice of invoking the consent given by an employee in order to support extension of the scope of personal data catalogue defined in the Labour Code was in conflict with the principle of appropriateness (proportionality). The Court pointed out that it was the principle of proportionality that represented the essential criterion applicable to biometric data processing. In the presented case the purpose, namely, control over employee working time was deemed inappropriate and failing to justify biometric data processing.