Employee data protection: Police clearance certificate – What must the employer consider?

The police clearance certificate no longer exists under this name. It is now called “Certificate of good conduct”. The regulations on the certificate of good conduct are anchored in the Federal Central Register (BZRG). A certificate of good conduct is an official certificate about a person’s registered criminal record. A distinction must be made between the following certificates of good conduct:

• Certificate of good conduct for private purposes
• Certificate of good conduct for an authority
• European certificate of good conduct
• Extended certificate of good conduct
• What can the employer do?

Does every employee have to present a police clearance certificate to his future employer? Many employees may ask themselves these questions when the future employer requests a certificate of good conduct.

Not every employee has to present a certificate of good conduct. Because according to the General Data Protection Regulation, any processing of personal data must be based on a legal basis. This means that processing of personal data is strictly prohibited unless there is a legal basis.

The certificate of good conduct contains sensitive personal data. According to Art. 10 GDPR, processing of these may only take place under official supervision or in exceptional cases. This is to prevent the person responsible from storing the data in an uncontrolled manner. However, Section 26 (1) BDSG regulates that personal data may be processed to establish or carry out an employment relationship, insofar as this is necessary. This passage makes it possible to process the data of Art. 10 GDPR.

However, this does not mean that every employer can request a certificate of good conduct from the future employee. The general ban on processing criminal convictions and offenses in accordance with Art. 10 GDPR must also be observed here. The certificate of good conduct can be requested if there is a legal obligation on the part of the employer to check his future employee for previous convictions, e.g. § 72a SGB VIII, this passage concerns the work with minors. This legal regulation gives the employer the right to have a certificate of good conduct presented to him when hiring an employee. If there is no legal basis for the submission of a certificate of good conduct, a necessity can only be assumed if the employer demands special reliability, e.g. for activities in banking or as a data protection officer.

The principle of data minimization must be observed. This means that the processing of the data is limited to what is actually necessary. Furthermore, it must be ensured that only people who need this data have access to this data. That would be e.g. This is the case with the management and the people who are familiar with the application process.

If the legislator requires the certificate of good conduct to be presented, the employer must document this presentation. How this documentation should be done is not specifically regulated. Due to the principle of data minimization, we advise against making a copy of the certificate of good conduct. In addition, according to Section 26 (1) BDSG, in most cases it is not necessary for the employment relationship to make and save a copy of the certificate of good conduct. It is sufficient to state whether or not you have a previous conviction. We therefore recommend only documenting the certificate of good conduct with a brief note on the person.

The employer may only request a police clearance certificate if this is regulated by law or if the employer requires special reliability, e.g. in banking. Furthermore, no copy of the certificate should be made, in order to protect the principle of data minimization. A note is enough!

The aigner business solutions GmbH team will be happy to answer any further questions you may have. Just contact us.