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In the recruitment processes, the use of tests to determine whether employee candidates have the abilities, skills and some behaviors due to the nature of the job has become common in recent years.
Data obtained from psychological tests such as personality, talent, honesty and intelligence provide information about the suitability of the employee candidate’s abilities and skills for the job. However, employers have certain obligations to comply with in order to make this testing process legal. Otherwise, some risks such as violation of the rights of privacy, non-discrimination and protection of personal data will come to the fore.
Psychological tests applied in the recruitment processes should have some features such as validity, reliability, acceptability, objectivity and usefulness.[1]
During the test process, the employee candidate’s permission should be obtained in advance, the tests should be administered by experts, sufficient information should be given to the employee candidate about the test, the tests should be related to the job and the qualifications required by the job, the purpose of the test should be explained and the results should be kept confidential. If these conditions are not complied with while conducting the tests, a violation of the employee candidate’s personal rights will occur and the employer may also be liable for compensation as per culpa in contrahendo.[2]
According to Article 419 of the Turkish Code of Obligations, the employer can use the personal data of the employee only to the extent that the employee’s work inclination is necessary or the performance of the employment contract is obligatory. According to Article 75 of the Labor Law, the employer must use the data collects about the employee in accordance with the rule of honesty and law and is obliged not to disclose the data that the employee has a justified interest in keeping confidential. In addition, when a psychological test is applied to employee candidates during the recruitment process, there are issues that employers should pay attention to and must fulfill in accordance with the Personal Data Protection Law. As a matter of fact, since the psychological tests performed on employee candidates are health data and they have special quality personal data in accordance with the Law, employee candidate data must be obtained and processed in accordance with these provisions.[3]
In terms of the Personal Data Protection Law, the employer must inform the employee candidates in advance about the psychological tests they plan to do, explain the purpose and application of the test and obtain their explicit consent. As stated above, the purpose of the test should be related to the employee candidate’s suitability for the relevant position and this test should be appropriate and necessary in determining the employee candidate’s suitability. It should not be forgotten that the employee candidate has the right to obtain information about the test result applied. If the test is carried out by an expert, information about whether the candidate is suitable for the job should be shared with the employer with the explicit consent of the employee candidate. In addition, if the tests are carried out by an expert in the workplace, the will should be revealed during the express consent that the information regarding the suitability for the relevant position as a result of the test will be shared with the employer.[4]
In conclusion, while psychological tests are applied during recruitment, employers must fulfill the above-mentioned conditions and carry out this process in accordance with the law. Otherwise, it will occur violation of the rights of the employee candidates arising from the law and the employers may face compensation claims.
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Authors: Bilge Derinbay, Aysu Eren Yüce
Contact: bilge.derinbay@nsn-law.com
[1] Prof. Dr. İlker Hüseyin Çarıkçı, Öğr. Gör. Ahmet Günay, An Investigation on the Psychotechnical Tests Utilised in the Recruitment Processes of Human Resources, Süleyman Demirel Üniversitesi Vizyoner Dergisi, C.10, S.178-194
[2] M. Zeki Adal, Legal Dimension of Employee Selection in Human Resources Management, Beykoz Akademi Dergisi, C.4, S.72-88
[3] Canan Unal, Health-Related Data in the Establishment of an Employment Contract, On İki Levha Yayıncılık, C.1, S.261-318,2018
[4] Canan Unal, Health-Related Data in the Establishment of an Employment Contract, On İki Levha Yayıncılık, C.1, S.261-318,2018