I am an HR director at a retail chain. We have decided to only accept online applications, and one of our in-house recruiters has started trawling through social network sites – Facebook and the like – for background on potential candidates before calling them for interview. Are there any legal issues to this practice that I should be aware of?
There are several issues raised by this approach to recruitment. The first is one of potential discrimination arising out of the age profile of internet users. In adopting a policy of online application only, it is likely that many older candidates will be excluded before the recruitment process has even begun. If faced with an age discrimination claim, the company would have to seek to justify this approach.
Trawling through these sites on receipt of an application is pre-employment vetting. Potentially, this raises both discrimination and data protection issues. For example, there may be information obtained from these sites that relate to an individual’s sexual orientation, or religious belief that impact, or are perceived to impact, on the eventual decision whether or not to recruit. Information that impacts on recruitment decisions in this way will be grounds for a discrimination claim.
A further issue with trawling these sites is the question of verification. What weight do you place on the information found? Was it placed by the individual themselves, or a disgruntled former friend or colleague? The Employment Practices Data Protection Code makes clear that an employer should “not place reliance on information collected from possibly unreliable sources. Allow the applicant to make representations regarding information that will affect the decision to finally appoint”. The applicant should therefore be given the opportunity to deal with information that the company has found on a social networking site that negatively impacts on any decision whether or not to recruit.
Such searches are effectively pre-employment vetting and the Employment Practices Data Protection Code states that employers should “only use vetting thing as a means of obtaining specific information, not as a means of general intelligence gathering”. This should only be undertaken where there are significant risks to clients/customer, and ideally only late in the recruitment stage, so that not all applicants are vetted routinely.
Searching social networking sites as a recruitment tool raises many potential issues and, as a matter of best practice, should not be generally adopted.
Jo Wort, professional support lawyer, and Gagandeep Prasad, solicitor Charles Russell
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