Simon Robinson: Screening an applicant’s social media profiles – yes or no?

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I know what you did last summer!”

It’s commonplace for individuals to check out a potential employer’s company website or Facebook page, but does it work the other way around? Is it ever legitimate for an employer to check a candidate’s social networking profile before employing them?

While obtaining information from these profiles might seem like a great way to get to know an applicant it’s not without its risks, and employers should think seriously about how they will use this information and why they even need it. If you wouldn’t ask someone about their family, friends – or their holiday in Ibiza – during an interview, why would you go digging for this information online?

Intrusive vetting 

In the first instance employers need to ask themselves why it is necessary to carry out these checks. The Information Commissioner’s Office (ICO) treats checks on an applicant’s online profile as pre-employment vetting and its Employment Practices Guide advises that vetting should only be carried out if there are particular and significant risks relevant to the employer and its customers, and where there is no less intrusive or reasonable alternative. Data protection legislation also applies to the processing of this information, so it has to be obtained lawfully and fairly.

As a guide the ICO recommends explaining to the candidate that these checks are being carried out – and when – and suggests that they should be as late on in the process as possible so only the people selected for the post are affected. A good rule of thumb is that employers should only undertake social media vetting to obtain specific information, and they therefore have to be able to justify why it is being collected; it can’t simply be generalised snooping.

HR teams and recruiters should also carefully consider how reliable the information is. How does one know that the profile is actually that of the applicant? And could they be screening out a potentially great candidate based simply on a quick review of their Facebook profile without actually hearing from them? From a legal perspective rejecting an application on this basis is arguably the equivalent of dismissing an employee based on third hand gossip heard at the water-cooler, and it can carry similar legal risks.

Protected characteristics and recruitment bias

Social media profiles will often include details of an applicant’s age, gender, race, religion and sexual orientation, which are actually  ‘protected characteristics’ under the Equality Act of 2010. As a result Acas’ guide to recruitment cautions against making judgements based on information from social networking profiles as it can put the company at risk of ‘recruitment bias’.  An unsuccessful candidate could claim, for example, that the rejection decision was discriminatory, leaving the business open to an embarrassing and expensive tribunal claim.  Similarly HR should always be the department to run any checks on social media, not the recruiting manager, to prevent the potential contamination of this process and additional complications in the event of a Tribunal.

In turn if social media vetting provides information which puts a candidate’s application into question, raising any concerns with the applicant in an interview setting enables them to provide clarification and for HR to make an informed decision, just as the ICO’s guidance recommends. However I would also question if it is appropriate to bring up a comment or an embarrassing picture made several years ago, particularly if the individual was quite young and naïve at the time. A candidate might have significantly changed since the post was made so this information would not be relevant should they dispute the decision. And if in doubt I would always advise HRs to seek independent legal advice to save money and undue stress further down the line.

Privacy concerns

Applicants are also within their rights to have legitimate privacy concerns, specifically if their profile restricts access to friends. Nevertheless the recent Crisp v Apple Retail Ltd case demonstrated that information can still come to an employer’s attention indirectly, and that the law will support companies that act upon this. For example in Crisp it was the friends of the employee who forwarded the derogatory comments – from a privacy restricted Facebook account – to their common employer, and in turn the Tribunal thus found that Mr Crisp, the claimant for unfair dismissal, ‘did not have a reasonable expectation that it would not be passed on by others who had access to it’. Now although this case concerned an existing employee, the point could similarly be argued in a case involving a prospective employee. Word, especially on social media, can get around.

To an extent the organic development of Facebook and similar social networking media has lulled individuals into believing that these are entirely personal, social and private. They are not. In Crisp v Apple Retail, Mr Crisp claimed that the European Convention on Human Rights applied to his Facebook postings, specifically the Article 8 right to respect for private and family life and privacy of one’s correspondence, and the Article 9 right to freedom of expression. The Tribunal dismissed both points, finding that the open nature of Facebook meant that he had no reasonable expectation of privacy, and that while Mr Crisp had a right to freedom of expression, Apple could justifiably limit this right in order to protect its reputation.

Hard as it may be, people in today’s jobs market need to take responsibility for the image they present online, and exercise some discretion of their own. As while someone might think a comment on Facebook is the equivalent of cosy chat with mates in the pub or over a coffee, the whole world is potentially listening in – and taking notes.

Simon Robinson is a specialist in employment and equality law and myBarrister.co.uk associate.

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