Snooping around a job applicant's Facebook? Here's where you stand legally

Keely Rushmore
Popularity Of Social Networking Website Grows
It might seem like second nature to check a job applicant's Facebook – but where do you stand legally? (Source: Getty)

We've all been told at least once in our lives not to “judge a book by its cover”.

The reality is that, more often than not, we do precisely the opposite.

In today’s technological age, where a Sunday evening isn’t complete without uploading photos from the weekend to Facebook, it’s increasingly rare to come across someone without an online presence. It’s hardly surprising, then, that many employers are tempted to trawl through job applicants’ social media profiles to see whether there are any potential skeletons in the closet. Many social media profiles are publicly available, so this can be a simple process, meaning that any Tom, Dick and Harry can make decisions based on personal photos and information.

However, while a seemingly handy recruitment tool, pre-employment vetting needs to be used with caution. So how should employers approach the question of online digging in their recruitment process?

The legal issues

Social media is fast becoming the easiest and most popular tool to “express yourself”. Whether it’s a status about someone’s love life, or a tweet about how much their back is aching following a recent injury, websites such as Facebook or Twitter are likely to reveal information that is protected under equality legislation. This might be disability, sexual orientation or race for example. If employers base their decision on this information they could find themselves facing a discrimination claim. It’s tempting to think that the candidate might never find out, but if the documentation obtained and generated during the recruitment process doesn’t tally with the decision made, then this can lead to the candidate asking awkward questions, and potentially a claim.

Further, recording or using information about candidates from websites will fall under the data protection legislation, and it’s crucial to ensure that you don’t fall foul of its requirements.

What if it all goes wrong?

If, for example, the HR officer decides to do some detective work into candidates’ backgrounds based on their online activity, employers are the ones who normally bear the brunt of any backlash. Candidates can bring a claim for discrimination, and it’s the employer who will be held liable and not necessarily the individual (although individuals can be personally named as parties to Employment Tribunal claims). However, if an employer can show it took all reasonable steps to prevent the discrimination, all might not be lost. It’s worthwhile having a clear policy ensuring consistency and fairness.

No alternative means

As tempting as it is, the bottom line is that pre-employment vetting shouldn’t be used as a means of intelligence-gathering. Rather, it should only be used as a means of obtaining specific information relevant to the particular role and only where there is no other less intrusive way of accessing that information. More often than not, there will be an alternative – and less risky – way.

If you’re going to do it, do it right

Having weighed up the risks and options, if an employer still considers it necessary to run pre-employment social media checks, it should make it clear early on in the recruitment process that vetting will take place and how it will be conducted so that candidates are fully informed. It’s also important to ensure consistency – if you’re going to check one candidate, check them all. It might seem time-consuming and unnecessary for the sake of a quick, five-minute Google search, but it will save considerable hassle (and costs) in the long term.

Keely Rushmore is a senior associate in the employment team at SA Law.

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