Pre-employment checks on social media

The country's first youth police and crime commissioner recently resigned from her post less than a week after being appointed following the discovery of a series of comments she posted on social networking sites some years earlier. Her employer had asked her in interview if there was anything in her past that could embarrass her to which she replied “no” but it had not undertaken any checks on social media sites. Although this is a particularly high profile case employers will want to avoid similar situations arising in relation to their employees. Before undertaking such pre-employment checks employers should however consider the legal implications of their actions.

Firstly, employers should consider if the information obtained as a result of the searches will influence the decision to recruit a candidate. The information discovered may not be relevant to a candidate’s ability to do a job. More importantly, it could also lead to discrimination as many social networking sites contain information about a candidate that is protected under the Equality Act 2010, for example information on disability or sexual orientation. If a candidate is refused a position or dismissed from a post as a result of this information it could constitute direct discrimination and the employer could face a costly legal battle.

Secondly, employers need to consider data protections issues. Data protection legislation aims to strike a balance between an employer’s need for information and the candidate’s right to respect for their private life. To achieve this aim the legislation requires openness so that a candidate knows what is being collected about them and what it is being used for. The Employment Practices Data Protection Code recommends that employers give candidates the opportunity to comment on the accuracy of any background checks or information it has obtained about them. Gathering information on a candidate covertly is unlikely to be justified so employers should advise candidates at the start of the recruitment process that they will be considering social medial sites as part of their vetting process and report their findings to them in due course.

It follows that if an employer chooses to conduct checks on social media sites they should be open with candidates at the outset and be clear in their own mind about what the information obtained will be used for.

For further information or advice please email David Hacker.