Internet background checks

Many employers regularly use networking websites such as MySpace http://www.myspace.com/ to obtain personal information about prospective staff.

Are there legal risks in using the internet to find out more information on job applicants?

Clearly, employers will want to obtain as much relevant information as possible about job applicants and ensure the accuracy of CVs. However, conducting ad hoc checks and research outside the formal recruitment process does carry legal risks.

Such research undermines the transparency and consistency of the selection process, and places employers at risk of discrimination claims where recruitment decisions are influenced by personal details obtained from the internet. It may also conflict with equal opportunities monitoring, and the way in which personal information must be processed to ensure recruitment is both non-discriminatory and in compliance with the Data Protection Act 1998 (DPA).

Pre-employment checks of this nature are also likely to be in breach of a number of “good practice recommendations” in Part 1 (Recruitment and Selection) of the Employment Practices Code (EPC) issued under the DPA – particularly where carried out without the knowledge of the applicant, or where information is collected from potentially unreliable sources.

On what grounds can you turn people down without running the risk of a claim?

Employers should always limit the impact of personal characteristics and interests on the selection process to those relevant to the job in question.

However, aside from data protection concerns, taking such factors into account will only put the employer at risk if this could lead to valid arguments that the candidate has been rejected on grounds of a prohibited form of discrimination, or that the selection process is indirectly discriminatory.

Some character traits gleaned from personal websites, such as unreliability or indiscretion, may be both relevant to job suitability and carry no taint of discrimination. However, the more personal information that an employer is able to obtain through background research, and the greater the inconsistency in the selection process between different candidates, the higher the risk of discrimination entering the equation.

Can you turn someone down if they have photos of nights out drunk on MySpace?

Whether this is relevant to the job in question is subjective, but turning someone down on these grounds alone is unlikely to lead to a valid discrimination claim.

What happens if someone says they like to go clubbing until 3am on week nights?

This raises clearer grounds for rejecting a candidate as it seems almost certain that such behaviour would adversely affect the candidate’s ability to perform their duties. An employer should still be mindful of DPA and EPC requirements, however, and should be open with the candidate about the process being conducted. For instance, there may be a risk of mistaken identity, and one of the recommendations of the EPC is that an applicant should be given an opportunity to make representations should any checks produce discrepancies.

What happens if someone has a long-term disease such as multiple-sclerosis (MS) or HIV?

The Disability Discrimination Act 2005 extended the remit of protection against disability discrimination to people with long-term diseases such as cancer, HIV and MS, even if they are not yet showing signs of their illness. If an employer obtains such information other than through a properly implemented equal opportunities monitoring process and then rejects the candidate, it will clearly be at risk of a successful disability discrimination claim, unless it can prove that discovery of the candidate’s illness was not a relevant factor in its decision.

What if a candidate has made sexist or racist jokes on their MySpace site?

DPA and EPC concerns aside, an employer would be within its rights to take a dim view of discriminatory jokes, since if the candidate is taken on, this raises the prospect of such jokes being made in the workplace, leading to harassment claims against both the individual and the employer.

What if they have criticised and moaned about their current employer?

Such public criticism would raise concerns about discretion and reliability. However, a prospective employer should try to establish whether such criticism may be justified or even appropriate. For instance, the individual may have been subject to some form of discrimination by their current employer, or may be a ‘whistleblower’ subjected to unfair treatment.

Adam Fuge, partner, Matthew Arnold & Baldwin

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