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Global employment briefing: Hungary, October 2018

  • Hungary
  • Employment law


Employers should review their policies for making criminal record checks

Due to the General Data Protection Regulation (‘GDPR’) entering into force, employers have to reconsider their data processing practices when requesting criminal records from their employees or job applicants.

The GDPR makes it clear that processing personal data relating to criminal convictions and offences can only be carried out by official authorities or when the processing is authorized by EU or Hungarian law. Any comprehensive register of criminal records can only be kept under the control of an official authority.

In practice, Hungarian employers often ask for criminal records from their employees even when they do not have a legal ground for the request and may, as a result, be seriously breaching employees’ or potential employees’ rights. Criminal records cannot be legally required on the basis of the employer’s legitimate interest only. Express consent from potential employees cannot serve as a legal basis either, given that the voluntary nature of such consent might be challenged.

Employers are only allowed to request criminal records when the law authorises it. For example, the Labour Code states that employers providing care, custody and treatment for persons under the age of 18 cannot enter into an employment relationship with a person who does not have a clean criminal record regarding specified crimes. There are some other employers that are entitled to require criminal records from employees such as employers employing public servants, judges or prosecutors.

As such, Hungarian employers should reconsider their data processing practices when requiring criminal records or conducting background checks from applicants or employees or risk significant fines from the National Data Protection Authority.