Short answer: Documenting hiring decisions means writing down, when you reject someone, one reason linked to a written job requirement, the evidence behind it, who decided, when, and what the candidate was told. In two August 2026 opinions, the Netherlands Institute for Human Rights weighed such records, and what was written down at the time shaped both outcomes.
To see how each Radius interview can be kept as a recording, a transcript and a summary, so an outcome can be reviewed later, read about trust and record keeping at Radius.
Key takeaways
- In opinion 2026-115, an employer could not prove that origin played no role in a rejection: its reasons changed and its records did not hold up.
- In opinion 2026-116, a staffing agency's internal notes and phone notes matched, and the Institute found no prohibited distinction.
- Once a candidate brings facts that suggest discrimination, Dutch law requires the organisation to prove it did not discriminate. A record made at the time is often the best evidence you have.
- A useful rejection record holds six things: one reason, the requirement it links to, the evidence, who decided, when, and what the candidate was told.
- Agree how long to keep it with your data protection officer.
On this page: What did the Institute decide in August 2026, and why did the records matter? · Documenting hiring decisions: what should a rejection record contain? · Why must the record match what the candidate was told? · How long can you keep the record? · What happens to records when you change systems? · How do you check that your records work? · What does this mean for staffing agencies? · What can a decision record not do? · Conclusion: write it down when you decide · How Radius helps · FAQ
What did the Institute decide in August 2026, and why did the records matter?
In both opinions, the notes made at the time shaped the outcome.
Why the burden falls on the organisation
Dutch equal treatment law prohibits discrimination in offering a job, in handling a vacancy and in job placement, which brings staffing agencies within its scope (Algemene wet gelijke behandeling, Article 5(1)(a) and (b)). Under Article 10(1) of the same Act, if a person brings facts that suggest discrimination, the other party has to prove it did not act in breach of the Act. The Civil Code has the same rule for distinctions between men and women at work (Burgerlijk Wetboek, Book 7, Article 646(12)).
The organisation then has to show what the decision rested on, and memory rarely survives that test. The Institute repeats a settled position: a selection procedure should be transparent, verifiable and systematic, so decisions can be checked afterwards, and one that falls short can add to a presumption of discrimination (opinion 2026-115, para. 5.6).
Opinion 2026-115: a rejection nobody could reconstruct
The first case concerned a public body recruiting driving examiners (opinion 2026-115, 5 August 2026). In August 2024 an applicant whose name does not sound traditionally Dutch was rejected by email, on the ground that his motivation letter did not fit the role. Two days later he applied again under a fictional, traditionally Dutch sounding name, with the same letter and a CV showing less relevant experience, and was invited to interview. Under his own name he had done better on the online assessment.
The Institute found these facts enough to presume a distinction on grounds of race, which it reads broadly to include origin. The employer then had to prove otherwise, and could not:
- Its reasons changed: first the motivation letter, then the candidate's Dutch, then a phone call it said had been decisive. Neither written message to the candidate mentioned that call, and he denied it took place.
- An internal note from the recruitment system was not accepted as objective support, because it was unknown who wrote it, whether it was complete and when it was added.
- Part of the data was lost in a move to a new system, so the call could not be verified. The employer had not requested the call records while it still could, and the Institute said that risk was the employer's.
The Institute found a prohibited distinction on grounds of race. In a separate finding, it held that the complaint itself had been handled carefully. It recommended recording relevant data, contact moments and the grounds for each selection decision, and keeping them available for the legally permitted periods; fixing selection criteria in advance; and, where a level of Dutch is essential, stating in the vacancy the level, why the role needs it and how it will be assessed.
Opinion 2026-116: notes that matched what was said
The next day the Institute decided a case against a staffing agency for technical staff (opinion 2026-116, 6 August 2026). A candidate had applied several times in 2024 for carpentry vacancies and was never invited. He said the agency gave him shifting reasons by phone and email.
The agency produced internal notes, phone notes and statements from the staff involved. The Institute accepted that the explanations had differed over time, but found them credible: the agency posts the same vacancy on several platforms at different times, so a posted role is not always available. It found the notes coherent, and the phone notes showed staff giving the candidate the same reasons they had recorded internally. The facts did not support a presumption of discrimination, and there was no prohibited distinction.
| Opinion 2026-115 | Opinion 2026-116 | |
|---|---|---|
| Organisation | Public body recruiting driving examiners | Staffing agency for technical staff |
| Reasons given | Changed during the procedure | Varied, explained by how vacancies were posted |
| Internal record | A note with no known author, date or completeness | Notes the Institute found coherent |
| Phone contact | Said to be decisive, absent from the written messages, disputed | Phone notes matched the internal notes |
| System change | Data lost in a move to a new system | None mentioned |
| Outcome | Prohibited distinction on grounds of race | No prohibited distinction |
What the two opinions do not show
Both are opinions, not court judgments. The Institute says its opinions are not legally binding but carry authority, and that a court asked to decide the same matter has to take its opinion into account (College voor de Rechten van de Mens, FAQ). The first case concerns a public employer recruiting examiners, not an agency placing frontline workers, and the name test was the applicant's own, not a controlled study. The finding is about whether origin played a role, not about intention.
Documenting hiring decisions: what should a rejection record contain?
Six facts, written down at the time by the person who decided.
| Field | What to write | Why it matters |
|---|---|---|
| Reason | One reason, in plain words | Reasons that change later look invented (2026-115) |
| Requirement | The requirement it links to, as written in the vacancy or job profile | Ties the decision to the job; the Institute recommends fixing criteria in advance |
| Evidence | What the reason rests on: an answer, a document, a check, or the vacancy no longer being open | An unsupported account could not rebut the presumption in 2026-115 |
| Who decided | Name and role | A note with no known author was not accepted as objective support |
| When | Date and time the decision was made and recorded | A note of unknown date carries little weight |
| What the candidate was told | Channel, date and the reason given | In 2026-116, phone notes that matched internal notes made the account credible |
Write each note as if the candidate will read it, because they may: under the GDPR a candidate can ask for access to their personal data and a copy (GDPR, Article 15(1) and (3)). And the person who decides should be a person, not a tool, as we argue in The Tool Should Never Be the One Saying No.
Illustrative example. An order picker role on an early shift.
- Weak record: "Not suitable. Rejected 14/10."
- Useful record: "Reason: cannot start before 08:00. Requirement: early shift starting 05:30, stated in the vacancy. Evidence: candidate said so in the screening call on 14 October. Decided by: branch recruiter, named in the system, 14 October, 10:40. Told: by phone on 14 October, confirmed by email the same day, same reason."
Only the second shows what the decision rested on. Telling candidates about the 05:30 start can prevent some of these rejections.
A checklist for every rejection
- The six fields above, written when you decide
- Each contact moment: channel, date and who spoke to the candidate
- What the candidate was told, word for word or close to it
- For agencies: which client vacancy, and whether it was still open
- Any change of reason, with the date and what changed
- Where language is the reason: the level, why the role needs it and how it was assessed
Why must the record match what the candidate was told?
Because a reason that differs between file and message looks invented afterwards.
High volume recruiters often reject by phone, with an email later. In 2026-115 the written messages named the letter and the CV, while in the proceedings the employer said a phone call had decided it. Nothing could reconcile the two, and the burden of proof did the rest.
The agency in 2026-116 shows the other side. Its reasons did vary, because vacancies came and went. The Institute found that credible given how the agency recruits, and its phone notes showed staff telling the candidate what they had recorded. The reason can change when the facts change; what you tell the candidate must match what you recorded at that moment. Three habits make this routine:
- Write the reason in the system before the call, or straight after it.
- Send the written confirmation from that recorded reason, not from memory or a generic template.
- If the reason changes, record the new reason, the date and what changed.
The voluntary NVP Sollicitatiecode (July 2025) asks organisations to tell a rejected applicant within two weeks of the decision, with reasons (NVP Recruitment Code, section 5.1). It says recruitment through agencies is governed by the Recruitercode, a separate code drawn up by recruitment professionals. Neither code is law; check which one your organisation follows.
How long can you keep the record?
No longer than necessary, so agree a period with your data protection officer.
| Source | What it says | Type |
|---|---|---|
| GDPR, Article 5(1)(e) | Personal data kept in identifiable form no longer than necessary for its purposes | EU law, applies now |
| Autoriteit Persoonsgegevens | Customary to delete a rejected applicant's data no later than four weeks after the procedure ends; with consent, up to one year is reasonable | Regulator guidance |
| NVP Sollicitatiecode, section 6.1 | Data destroyed within four weeks of rejection unless agreed otherwise; consent renewed after one year | Voluntary code |
| EU AI Act, Article 26(6) | Deployers of high risk AI systems keep the logs under their control for a period suited to the purpose, of at least six months, unless other EU or national law, in particular data protection law, provides otherwise | EU law, from 2 December 2027 under Regulation (EU) 2026/1744 |
Four weeks is guidance, not a legal maximum, and equal treatment cases can arrive much later. In 2026-115 the rejection was in August 2024, the request to the Institute came in July 2025 and the opinion in August 2026. The Institute recommended keeping records for the legally permitted periods, without setting a number. For the AI Act timetable in recruitment, see The EU AI Act and Recruitment.
Equal treatment cases can arrive much later
- August 2024The rejection
- July 2025The request to the Institute
- August 2026The opinion
Agree a retention approach with your data protection officer and legal adviser. Settle four points together:
- What the decision record is for: answering the candidate, handling a complaint, or both.
- Whether it needs the full application, or only the reason, requirement, evidence and contact moments.
- What happens to a file when a candidate asks questions or complains before the deletion date.
- If you use a high risk AI system, how its logs will fit with the periods you set for applicant data once the AI Act duty applies.
What happens to records when you change systems?
Unless you plan the move, they can get lost, and your evidence with them.
In 2026-115, part of the data was no longer available after a move to a new system. A disputed phone call became impossible to verify, and the consequences fell on the employer. The Institute noted with approval that a new recruitment system was now in place and assumed the employer would apply its recommendations from now on (opinion 2026-115, paras. 5.7, 5.15 and 8.3). Before any change of applicant tracking system, or a merger of branch systems:
- List open and recently closed procedures, and any with a complaint attached.
- Map the record fields one by one: reason, requirement, evidence, decider, dates and contact log.
- Carry over the original author and date of every note, not the date of import. A note without them is the kind the Institute could not rely on.
- After the move, ask a colleague to reconstruct five files from the new system alone.
- Agree with your data protection officer how long the old system stays readable, and when it is deleted.
How do you check that your records work?
Ask a colleague to reconstruct a sample of rejections every quarter.
Our view: a decision record works if someone who was not there can understand the decision from the record alone. A quarterly check finds the gaps before a complaint does. For the wider process, see How to Audit Your Hiring Process for One Role in One Hour.
- Pick a random sample of recent rejections, for example ten per branch (illustrative; size it to your volume).
- For each, the colleague answers from the record alone: which requirement, what evidence, who decided, when, and what the candidate was told.
- Compare the reason in the system with the written message and any phone note.
| Measure to track | What it shows |
|---|---|
| Share of rejections with a recorded reason linked to a requirement | Whether the rule is used |
| Share of sampled files a colleague can reconstruct | Whether the records are usable |
| Cases where the reason differed between channels | Where the risk seen in 2026-115 sits |
What does this mean for staffing agencies?
Agencies carry the same burden of proof, across more channels and clients.
The Act's ban covers job placement, and 2026-116 shows notes supporting an agency's account. Watch four points:
- One vacancy on several platforms: record whether the client role was still open.
- Recruiters (intercedenten) on the phone all day: write the note after each call.
- Several clients: link each rejection to the client's written requirement.
- Ownership: branch managers own the quarterly check.
What can a decision record not do?
It cannot make an unfair reason fair.
If a requirement has nothing to do with the job, the record will show it: fix the requirement, do not stop writing. In 2026-115 the Institute warned that language requirements can amount to indirect distinction on grounds of race or nationality when they are not objectively justified and go further than necessary (para. 8.2). A record also cannot replace a fair process, such as asking every candidate the same questions (How to Run Structured Interviews at High Volume). And both opinions turn on their own facts.
Conclusion: write it down when you decide
A quick, honest rejection can still be impossible to defend once the burden of proof shifts. One reason, linked to a written requirement, recorded at the time by a named person, given the same way in every channel and carried safely through a system change, is a small habit. Its absence weighed against one employer; its presence supported an agency's account.
How Radius helps
Radius Hire is the AI hiring platform for frontline roles. Radius never rejects a candidate on its own: a recruiter reviews the evidence, can overrule anything Radius presents and makes every hiring decision. Each interview can be kept as a recording, a transcript and a summary, and each check carries its source and date, so a decision can be explained later. Candidate data is hosted in the EU, and the employer sets how long it is kept.
See the AI Interviewer, how Match shows whether each requirement is backed by a document or a check, rests only on what the candidate said, or is still missing, the Radius ATS, trust and record keeping and Radius for agencies.
FAQ
Do you have to record why a candidate was rejected?
In practice, yes. Once a candidate brings facts that suggest discrimination, the General Equal Treatment Act puts the burden of proof on you, and in opinion 2026-115 the Institute recommended recording the grounds for every selection decision. A reason written at the time is the most practical way to meet that burden.
How long can you keep rejected candidates' data in the Netherlands?
The GDPR sets no fixed number of weeks; data must go once it is no longer needed. The Autoriteit Persoonsgegevens calls deletion within four weeks after the procedure customary, and up to a year with consent reasonable. Set your own period, including for decision records, with your data protection officer.
What happens if you cannot explain a rejection?
If the candidate has shown facts that point to discrimination, the gap counts against you. Under Article 10 of the General Equal Treatment Act, the organisation must then prove it did not discriminate, which the employer in 2026-115 could not do.
Can a candidate ask to see your notes about them?
Usually, yes. Notes about an identifiable candidate are personal data, and Article 15 of the GDPR gives a right of access and a copy, subject to limited exceptions such as the rights of others. Keep every note factual.
Does a decision record protect an employer?
Only if the reason relates to the job and was written at the time. A record of an unlawful reason would prove the opposite. A record shows what you decided, not that the decision was right.
General information, not legal advice. Position as of 21 October 2026.
Sources
- Algemene wet gelijke behandeling (General Equal Treatment Act), Articles 5(1) and 10(1), version in force from 1 January 2026. https://wetten.overheid.nl/BWBR0006502/2026-01-01. Checked 21 October 2026.
- Burgerlijk Wetboek Boek 7 (Dutch Civil Code, Book 7), Article 646(1) and (12), version in force from 8 October 2026. https://wetten.overheid.nl/BWBR0005290/2026-10-08. Checked 21 October 2026.
- College voor de Rechten van de Mens (Netherlands Institute for Human Rights), Oordeel 2026-115, 5 August 2026, dossier 2025-0486. https://oordelen.mensenrechten.nl/oordeel/2026-115/839047cb-c63d-490f-b1a4-7596916f16ed. Checked 21 October 2026.
- College voor de Rechten van de Mens, Oordeel 2026-116, 6 August 2026, dossier 2025-0019. https://oordelen.mensenrechten.nl/oordeel/2026-116/2bb83e3c-b19a-4cac-a8f6-e76c4cc68748. Checked 21 October 2026.
- College voor de Rechten van de Mens, "Veelgestelde vragen" (frequently asked questions). https://www.mensenrechten.nl/mensenrechten-voor-jou/wat-doet-het-college/veel-gestelde-vragen. Checked 21 October 2026.
- Regulation (EU) 2016/679 (General Data Protection Regulation), Articles 5(1)(e), 15(1) and 15(3). EUR-Lex. https://eur-lex.europa.eu/eli/reg/2016/679/oj. Checked 21 October 2026.
- NVP Netwerk voor HR-professionals, "NVP Recruitment Code" (English edition of the NVP Sollicitatiecode), version July 2025, sections 5.1 and 6.1 and note I. https://www.nvp-hrnetwerk.nl/l/library/download/urn:uuid:cd2ccc6d-22ca-467d-9ab9-1de237da9e06/brochure+sollicitatiecode+eng+online+versie+09_2025.pdf. Checked 21 October 2026.
- Recruitercode, home page. https://recruitercode.nl/. Checked 21 October 2026.
- Autoriteit Persoonsgegevens (Dutch Data Protection Authority), "Persoonsgegevens van sollicitanten", section on retention. https://www.autoriteitpersoonsgegevens.nl/themas/werk-en-uitkering/sollicitaties/persoonsgegevens-van-sollicitanten. Updated 2 January 2025; checked 20 October 2026.
- Regulation (EU) 2024/1689 (AI Act), Article 26(6), as amended by Regulation (EU) 2026/1744 (Digital Omnibus on AI, Official Journal of 24 July 2026), which sets 2 December 2027 for the Annex III high risk rules. EUR-Lex. https://eur-lex.europa.eu/eli/reg/2024/1689/oj and https://eur-lex.europa.eu/eli/reg/2026/1744/oj. Checked 21 October 2026.