A Christian employee who was demoted in his job and had a 40% pay cut for a comment he wrote on Facebook about gay marriages recently won a breach of contract action against his employer. After seeing an article entitled “Gay marriages get go ahead” on the BBC news website, Adrian Smith linked this to his Facebook page and added the comment, “an equality too far.”

His Facebook comments were not visible to the general public and were posted outside work time, but his employer, the Trafford Housing Trust, argued he broke its code of conduct by expressing religious or political views which might upset co-workers.

Trafford Housing Trust has apologised, saying: “This case highlights the challenges that HR faces with the increased use of social media … we have reviewed our documentation and procedures to avoid a similar situation in the future.

So where do HR and businesses stand when it comes to delving into employees’ or candidates’ social lives?

Every day, millions of people use social networks such as Facebook, Twitter and Linked In to interact with friends, keep-up-to-date with breaking news and share content with numerous communities.

  • Facebook now has over one billion users and has officially registered one seventh of the world’s population
  • Twitter has gained more than 500 million users since it launched in 2006 and there are now 750 tweets every second
  • LinkedIn boasts 161million users across 200 countries with two new members signing up every second

As the popularity of these sites has increased, so too have the number of issues and challenges for HR when it comes to dealing with social media in the workplace. For employers, the sheer scale and reach of these sites offers tremendous potential to raise their profile, enhance their company brand and recruit the best people. But on the flip side, while these social networking sites also appear to offer employers a convenient and inexpensive way to validate CVs and gain an insight into a potential candidate’s character, failure to recognise and understand the risks associated with screening via social media sites could result in legal recriminations further down the line.

Social media and recruitment
Social networking sites have had a major impact on how and where candidates are now sourced with recruiters routinely going online to search for new talent. The proliferation of the professional network, LinkedIn, in particular has mean that anyone with a profile has become a potential candidate. When used effectively, these social networking sites offer employers the opportunity to forge newer and deeper relationships between employees and employers and has the potential to ensure better cultural fit and suitability for a particular role.

While social media has the potential to deliver a tremendous return, one of the legal issues here is the potentially discriminative nature of using social media. Given that usage and access to these social networking sites is not universal, employers need to make sure the recruitment policy and process reflects this.

Social media and screening candidates
At a seminar hosted by city law firm, Prolegal earlier this year, it was reported that 45% of employers use social networking sites to screen potential employees (compared to 22 % in 2008). Social media as a means to understand candidates and employees is now widely used, discussed and perhaps feared, but just what are the risks and returns for employers?

It’s easy to understand why employers would want to use these sites. They can help verify identities and evaluate a person’s lifestyle choices as well as their honesty and integrity. Suspicions can be confirmed or negated and security awareness is also highlighted, as are ulterior motives and conflicting attitudes. It can even show illegal activities.

And this is just the tip of the iceberg. There are a myriad of issues employers look to uncover by conducting social media checks in conjunction with more traditional pre-employment screening checks, from tax and expenses fraud, to money laundering and CV fraud.

While there is no specific legal constraint when it comes to searching open source information online – it’s in the public domain and publically accessible – employers could leave themselves open to serious legal repercussions if it’s not managed appropriately:

  1. Contravention of the Equality Act / Employment Law: Discrimination on grounds of age, race, gender, sexual orientation, religious or philosophical belief, disability
  2. Breach of the Human Rights Act: Article 8: right to respect for private and family life
  3. Breach of the Data Protection Act (DPA): People handling personal date must comply with specific principles

Getting proper legal advice and support is critical. Privacy and data protection are big issues here. While there is nothing wrong with rejecting a candidate due to personal characteristics, if this information is obtained through a social networking site, it is impossible to ensure whether all the information uncovered is relevant to the recruitment decision. Recruiters should also be aware candidates who have enabled security features and ‘locked down’ their profiles will not have been scrutinised to the same degree as other candidates who have adopted the generic ‘open profile’ setting.

Particularly sensitive is access to information that relates to an individual’s country of origin, religious preference, disability, age and sexual orientation. A prospective employee who is rejected may bring an action against the company where they believe that unlawful discrimination was a factor in their rejection.

Employers can minimise the risks by more accurately evaluating the use of social networking sites in certain situations and considering whether an alternate approach may be more appropriate. For example, if qualification verification is required, a background screening company can legally carry out this check, drawing on a number of different sources and searches, posing no legal threat to the employer in any way.

Employers should also bear in mind that the content on these sites is generated by the candidates themselves, so verifying CVs in this way is not likely to be very accurate.CV fraud is increasingly common, with prospective employees falsifying qualifications, references and immigration status to secure employment in a competitive job market. It’s also not uncommon to find concealed employment history, unspent criminal convictions and adverse financial and credit history, discrepancies which generally only come to light as a result of seeking verification at source of the relevant details.

Social media and ongoing screening
The risk profile of an employee can change dramatically over time as was demonstrated by the recent high profile case of UBS rogue trader, Kweku Adoboli, who gambled away £1.4bn in unauthorised deals. And while it may be tempting for employers to use social media as a tool for monitoring employee behaviour, this is risky and uncharted territory.

Joanna Cowie, head of legal at HR Insight, Vero’s HR and employment law partner points out: “As the case of Adrian Smith shows, employers need to be mindful of overreacting to personal comments made by employees on social networking sites. Having a clear social media policy in place and training for employees around what is and isn’t acceptable can help prevent these types of cases happening in the future.”

Employers should also consider developing a formal ongoing screening policy. The policy should be part of the written terms and conditions of employment and employees should be made aware at the point of hire that an ongoing screening policy exists. Open and honest communication with existing employees about the policy, the checks carried out and how it links with organisational objectives can really help to avoid negativity and minimise employee concerns.

Indeed, over the last 12 months, Vero has seen an increase in ongoing monitoring by its clients as they look to achieve compliance with employment best practice and regulatory recommendations. It has also become clear that there is a growing awareness among employers of the role ongoing monitoring can play in protecting their businesses.

The future
The UK tends to follow US trends in this area and recently there has been a wave of employment law changes in the US to ban employers and recruiters from demanding Facebook and other social media passwords from candidates or employees. If the candidate has a restricted or locked down profile, it had become fairly common practice in the US for employers to either demand the candidate log in to their Facebook page at interview or to hand over their password so the recruiter can snoop into their personal profile. So when it comes to using social media as a recruitment and screening tool, employers should be mindful of staying on the right side of the law and exercise fair and appropriate usage of these networking sites.

Social media and candidate screening checklist

  • Develop a company-wide policy on the appropriate use of social networking sites in the workplace
  • Checking can be time consuming, so set up a structure to ensure that the applicant’s identity has been correctly verified and that third party and company views are managed and recorded effectively
  • Make sure the checks are proportionate – they need to be relevant to the role. For example, do not rely on arbitrary checks on an individual’s private life where it does not affect work activity
  • Are the checks necessary? It is a breach of the DPA to collect personal information that is irrelevant or excessive
  • Put the checks into perspective – they should from only part of the picture. Balance the risks to company reputation, assets and people vs. making a personal judgement about an individual’s lifestyle choices
  • Be clear at the outset about what checks will be performed and introduce a screening policy relating to both pre and post employment so everyone knows where they stand
  • Ensure consistency – data should be sought, handled, reported and stored in the same way for all
  • Draw on legal advice and support around social media and keep up to date with the latest best practice

The Author

Rupert Emson, CEO, Vero Screening (www.veroscreening.com)