Summary: 1. In defence of pre-contractual employment relationship and its relevance for labour law. 2. Profiling through data and information dyad. 3. Recruitment practices involving automated profiling of the candidates in the light of right not to be subject to a decision based merely on automated processing ex Article 22 GDPR. Cleaving power of the algorithmdriven hiring tools. 4. Algorithm cannot be lied to. Right to lie as a defence mechanism. Exception from culpa in contrahendo and its problematic application in automated profiling. 5. Final remarks.
The essay deals with the pre-contractual phase of the employment relationship, the subject-matter largely neglected by labouristic doctrine which however deserves a more in-depth analysis in relation to new technologies. It starts with the acknowledgment of doctrinal indifference towards of this phase of the employment relationship and its roots; the Author then justifies the protective interventions of the legislator in the matter by so called theory of democratic deficit. The analysis provides some insight into the conceptual differences between the notions “data” and “information” depending on whether they are used in automated or human profiling, and underlines their improper use by the European legislator. Against this backdrop the inquiry addresses automatic profiling through the critical scrutiny of Article 22 GDPR. It concludes with the hypothesis of the right to lie as a lawful tool if used as a legitimate defence against banned investigations by the potential employer, and its failure when algorithms take over.
Pre-contractual employment relationship, data and information, automated profiling, right to explanation, right to lie.