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Social media: snooping in the recruitment process

Recruitment processes can only tell you so much about a job applicant. If an individual is active on social media, surely it is prudent for recruiting employers to examine their online profile to find out more? The practice of on-line screening is becoming widespread but, as Katherine Flashman Kitson, employment law specialist at Parnalls Solicitors in Launceston, Cornwall explains, employers need to be careful about when they screen and what they do with the information they obtain.

‘You cannot assume that just because an individual’s social media profile is publicly accessible that you can use it in the recruitment process’, says Katherine. ‘Whenever and however you obtain information about an individual for recruitment purposes, data protection law requires you to balance the individual’s right to respect for private life against your need to obtain relevant information.’

An influential European working group on data protection has published an opinion on screening applicants and although it is not binding it is likely that the UK’s Information Commissioner will adopt a similar position, particularly when stricter data protection laws comes into force in May 2018.

‘The main point made in the opinion’, explains Katherine, ‘is that fishing expeditions on social media are not permitted. Instead, a cautious approach is needed which acknowledges the employee’s reasonable expectation of privacy and the extent to which an individual’s online activity is relevant in determining their suitability for the position applied for. This is particularly so when looking at personal social media profiles as opposed to professional networking sites such as LinkedIn.’

When is screening justified?
Screening can only be used to obtain specific information, which is necessary and relevant to a particular role. Not only that, there must be no less intrusive way of getting hold of that information. This is a difficult hurdle to get over given that in most cases you could just ask the candidate for the information you require.

For example, an employer recruiting for a post in a social media business may wish to look at an applicant’s social media accounts to assess how familiar they are with certain platforms and their ability to post creative content. The employer would first need to consider if there was a less intrusive way to assess these abilities. For instance, could the applicant show them any online content they have produced in a professional capacity? Could they ask the applicant to give previous examples or set them a task using an account created specifically for that purpose? Even if the employer concludes that it is justifiable to access the applicant’s social media accounts, they must be very careful that they only do so for the specific purpose in question. This creates a difficult situation where the employer comes across a post on the applicant’s social media pages which reflects badly on their character but not their abilities, because in these circumstances the employer should not use that information as a reason to turn down the applicant.

You might have thought about making consent to a social media audit part of your selection process. If you have, it is worth noting that the working group referred to above takes the view that employers cannot rely on applicants giving consent to screening because the imbalance of power between you means that consent in these circumstances is unlikely to be valid. Unsurprisingly, they also say that you cannot require an individual to allow you to access their social media accounts, for instance by accepting a request to be a friend on Facebook.

Risks of relying on information gathered from social media snooping
In addition to the data protection concerns, there is also the risk of a discrimination claim arising where a job applicant is turned down for interview or not offered a job following a review of their social media activity by the recruiting manager.

The risk arises because reviews of this sort often take place outside of the formal recruitment process, so managers may be more vulnerable to accusations that they have (consciously or unconsciously) been discriminatory in their decision-making process.

For example, a manager whose employer is recruiting staff who will occasionally work on Sundays may turn down an application from an individual who posts online about his devout Christian beliefs and regular church attendance. Equally, a manager may decline to call for interview an applicant who posts about the challenges of caring for a disabled child where the position they have applied for needs to be filled by someone with a good attendance record.

You also need to be very careful to apply the same standards to different groups. For instance, let’s take a manager who is recruiting for a role involving client entertainment. Imagine he comes across online photos showing applicants on raucous nights out. Is unconscious bias at play if the manager concludes a female applicant could be loud and inappropriate, whereas a male applicant in a similar photo looks like he would be a ‘good laugh’? It is worth remembering that a disappointed applicant can make a subject access request under data protection laws to get hold of any documents or records relating to their application and which may shed light on why they were unsuccessful.

Another risk is that, as ACAS point out in their guidance on social media in recruitment, using information from social media may be unfair because not all applicants will have an accessible online profile and so not everyone will be assessed in the same way.

Steps to take to avoid problems
1. Consider whether online screening is necessary and relevant for particular roles. We can advise you on this assessment.

2. Implement a policy advising managers on the use of online screening, the need to be objective in their decision-making and how to comply with data protection law.

3. Inform applicants that you use screening and the reasons for this. We can help you ensure that this notice complies with the new requirements under the General Data Protection Regulation, which comes into force on 25 May 2018.

For a confidential discussion about on-line screening, or any other employment law matter, please contact Katherine Flashman Kitson on 01566 772375 or email flashmankitsonk@parnalls.com

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