Weekly dilemma: using social media profiles when recruiting

Q I’m a manager in the company’s HR department, and over recent months we have been using online profiles of candidates to verify applications for employment. I feel uncomfortable about this, but are there any legal issues to consider?

A Legal areas to consider in relation to the rejection of candidates for employment on the basis of their online profiles concern the rights they may have in employment law. The issue here relates to discrimination, in that an applicant has a right not to be discriminated against on a number of recognised grounds when applying for employment. These grounds are generally well known, but will include sex, race, disability, religion or belief, and age. Employers often forget that an applicant has these rights, and substantial claims can be bought in relation to them.

The only way an employer can try to protect itself from these claims of discrimination in the interview process is to ensure that the process is scientific in its nature. This is something that has occurred over recent years to the extent that the whole interview and application process is generally far more standardised in organisations than it used to be. The reason for this is that it gives the employer the argument in any employment tribunal that the rejection was down to totally objective business reasons and not tainted by discriminatory considerations in any way. The point here, however, is that the employer needs to be able to prove this.

A concern in relation to rejecting candidates on the basis of their online profiles is that it may be more difficult to show the rejection was down to scientific and objective criteria, rather than facets of the online profile. In addition, as a broad generalisation, it tends to be the younger generation who subscribe to and partake in the common online profiling activities. Consequently, it must be possible for a younger candidate to argue they were unfairly treated, as opposed to an older candidate, if the older candidate did not have an online profile and this was not used within their selection process.

It is fairly foolhardy to reject an applicant on the basis of online profiling in view of the discriminatory issues that might arise, and employers should be warned against doing so.

Jonathan Maude, partner, Hogan & Hartson

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