Legal Q&A: The risks of using social media as a recruitment tool

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The UK tends to follow US trends and, as recent statistics suggest, it is becoming increasingly common for US recruiters to review candidates’ social media profiles before offering a job, so now is a good time to get to grips with what you can and can’t do. This is important because the law is well behind today’s technology, let alone the technology of tomorrow. Leon Deakin, associate at Thomas Eggar, provides answers to questions on using social media in recruitment.

Q How are recruiters using social media as a recruitment tool?

Information on individuals is now easily accessible via a quick web search. Indeed, many businesses and recruiters feel that they can get a better idea of a candidate’s true character, experience and attributes by viewing their Facebook page, Twitter account or LinkedIn profile.

Q Am I running any legal risks by doing this?

There is no specific legislation dealing with social media and recruitment; we have to look at how these sorts of checks interact with existing laws. This mainly falls into three areas of risk: privacy, discrimination and data protection.

Q What are the risks relating to privacy?

When looking at an applicant’s webpages, you must not encroach on their right to a private life. This means that if the information you are viewing has been “willingly” made public, you are fine. Conversely, hacking or accessing information surreptitiously is a definite breach. This could include using IT to access an account or asking someone else to take a look for you. Determining what has willingly been made public is not necessarily straightforward, as confusion can easily arise over privacy settings on photographs and information that people want only to be seen by friends (ie accidentally been made public). As a result, unless it is easy to see and open to the public, treat with caution.

Q What are the risks relating to discrimination?

Even if you are certain that you are looking only at “public” information, you still could be exposed to a discrimination claim. You don’t ask for or expect sensitive personal information relating to characteristics protected under the Equality Act 2010 (such as race, religion, age, sexual orientation) to appear on a CV or as part of an application form. However, all of this information and much more can often be visible on a social media page. Once you have seen this information, you are then “tainted” with the knowledge. As a result, it then becomes much easier for a rejected individual to claim that the real reason you did not offer them the job was because of that protected characteristic. Of course, you can potentially combat these claims by ensuring that you keep a clear record of what the real and non-discriminatory reasons for rejection were, but why open yourself unnecessarily to this sort of risk?

Q What are the risks relating to data protection?

If it is difficult for an applicant to find out who has viewed their pages, does this lower the risks of a discrimination claim? Many sites now offer people the ability to see who has viewed their profiles, but trying to keep quiet does not sit comfortably with the guidance on data protection. In particular, although we have no specific laws on social media and recruitment, and the Data Protection Act 1998 does not address it directly, the types of information available on social media sites do constitute data (in many cases, sensitive data). By looking at it, a company may be caught out by the Act. Further, the Information Commissioner’s Employment Practices Code makes several relevant recommendations, including that: the potential employer should inform the candidate about the vetting steps it is taking; any vetting must be proportionate; the candidate must be given the chance to comment on any information found; and companies should only trust reliable information. So, employers should only investigate candidates on social media if there is a good reason, stick to reliable sites, inform the applicant and allow them to respond.

Q Should I do it?

The answer to this question depends entirely on the needs of the business and your attitude to risk. However, at present, vetting applicants via social media carries a degree of risk. In addition, common sense suggests that what you can learn is limited. If having strange hobbies or friends and enjoying a drink at the weekend is a bar to employment, then I suspect few of us would be left with a job. As a result, unless you have a very good reason to check, is it really worth the risk?

Leon Deakin, associate and head of TMT sector at Thomas Eggar LLP

FAQs from XpertHR on data protection:

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