I noticed through the Facebook connector for Outlook that one of our longstanding customers were publishing a blog, after following the URL I found a collection of short but informative posts around employment law. One that I thought I’d share was about the possible legal issues we face by checking a potential candidate on a social media, interesting reading. Thanks to Rees Page for allowing me to re-post this and here’s a link to their blog, well worth subscribing to. http://ukemployerlawyer.blogspot.com/
With the increasing use of social networking sites like Facebook, and the large amounts of personal information being found on these, it can be increasingly tempting for employers to use these as a tool in the recruitment process.
After all, what could be easier than typing the name of the prospective recruit into a search engine and seeing what comes up?
41% of recruiters in a 2009 survey claimed to have rejected candidates based on their online reputations. Interestingly only 15% of job applicants interviewed felt that information published online could affect their chances of getting a job.
But there are dangers to using this method – suppose the female applicant’s Facebook status update is announcing to the world that she is expecting a baby. She does not get the job and alleges this is because of her pregnancy, and that this is unlawful sex discrimination.
If the evidence shows you have looked at her site, you could be facing an unlimited damages bill (including compensation for hurt feelings) from someone who has never worked for you – even if this was not the reason for preferring another candidate. Once a prima facie case of discrimination has been established the onus is on you to disprove it.
Remember that doing a search will create an audit trail on your computer system and that you will be obliged to give disclosure of the relevant records in any proceedings.
There may also be privacy issues – if someone is putting something on an openly accessible part of the world wide web then arguably they can have no expectation of privacy, but if you have to "join" a group in order to access the information then there may be arguments that doing so amounts to an invasion of privacy.
In addition by looking at this information for the purposes of considering whether to employ someone you are almost certainly "processing" data as defined by the Data Protection Act and have a duty to comply with the data protection principles. Although the Information Commissioner’s Office has not offered specific guidance on this topic, this is likely to mean that you need to tell applicants that you are doing such a search and what it reveals, and will have to give them a chance to comment on whether the information is accurate (for example, are you looking at the right "John Smith"?)
It is not necessarily the case that a prudent employer will never employ such methods, but caution should be exercised and a policy should be adopted and communicated to all potential recruiters within the organisation to avoid any expensive mistakes. Richard Ennis