BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

Thus, although there is a presumption of broad right to the freedoms of the worker in the context of relations of employment, generating the incidence of fundamental rights unspecific in these relationships, such rights may be limited when in conflict with corporate interests worthy of protection. 47 However, even so, any restriction to a fundamental right should comply with the criteria of proportionality 48 (necessity, appropriateness and proportionality in the strict sense of the term) and the preservation of the essential core of fundamental rights. 49 Concerned with the assumptions on which these data may suffer some type of limitation by the employer, the Recommendation of the Committee of Ministers of the Council of Europe – Recommendation CM/Rec (2015)5, in item 9.1, brings an important directive regarding the processing of these data, which can serve as a source of interpretation in the judgment of weighting of the concrete case: The processing of sensitive data referred to in Article 6 of Convention No. 108 is only permitted in particular cases, where it is indispensable for recruitment to a specific job or to fulfil legal obligations related to the employment contract within the limits laid down by domestic law and in accordance with appropriate safeguards, complementing those set out in Convention No. 108 and in the present recommendation. Appropriate safeguards should be aimed at preventing the risks that the processing of such sensitive data may present to the interests, rights and fundamental freedoms of the employee concerned, notably a risk of discrimination. Having made the remarks about the effect of fundamental rights in relations between individuals, as well as about the need of balancing of rights in conflict in the concrete case, it is worth noting that in working relationship, if the employer adopts an abusive and distorted processing regarding to the processing of personal and sensitive data of the employee, in order to undermine the security of this, making an analogy to the provisions in article 567 of the Code of Civil Procedure, 50 the worker can use the injunction to terminate or prevent such threatening practice. 47 In this sense, Vecchi (VECCHI, I. D. The effectiveness of fundamental rights in private relations: the case of the employment relationship. Revista do TST . Brasília, 2011, v. 77, n. 3, p. 125) mentions the cases of limitations for security reasons, contractual functions exercised by the employee, as well as those which derive from the power of command for the organization and direction of the productive process. 48 With respect to the principle of proportionality, which constitutes one of the pillars of the Democratic State of Brazilian law, Vecchi (VECCHI, I. D. Labor law: introductory notions, employment relationship and labor contract . Curitiba: Juruá 2016, p. 348) defines it “as a parameter, as an existential one for the solution of conflicting cases at the level of values, principles, fundamental rights and other assets and interests constitutionally sheltered.” 49 As to the subject, Vecchi (VECCHI, I. D. Labor law: introductory notions, employment relationship and labor contract . Curitiba: Juruá 2016, p. 233) clarifies that the essential core of a right is ”what characterises a right as itself and not another”. For example, author reports the case of “a rule authorizing the right of vacation to be broken up thirty times during the year. This rule would affect the very core of the right, as it would deprive the right of vacation, transforming it into a set of days off, implying the unconstitutionality of the authorizing rule in question.” 50 Art. 567. The direct or indirect possessor who has a fair fear of being disturbed in possession may require

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