Exercise restraint screening potential employees on social media

Posted on August 31, 2017

Employers - have you checked out a candidate's profile on social media recently?

If yes, you're not alone. According to a survey carried out by CareerBuilder, an online recruitment company, 60% of employers screen their candidates using social media*.

You can understand why employers might want to find out more about their prospective employee. They want to know what he's like; will she fit into our team; what is she interested in outside work; and how does he behave?

However, this common practice could be more restricted in future. Employers must have a good legal reason to screen their future employees.

Current UK law to protect personal data

A person's posts on social media platforms, such as Twitter and Facebook, amount to personal data. The Data Protection Act 1998 controls how personal information can be used and regulates how employers treat that data.

Employers are subject to the Data Protection Act 1998 (the Act) when processing information about their employees. They must comply with eight data protection principles (which are set out in full on the Information Commissioners' website here). For example, they ensure that data is processed fairly and lawfully, for specified purposes.

Guidance on whether an data protection impact assessment is needed

In future, employers may have to carry out Data Protection Impact Assessments (DPIAs) to assess whether their intended use of social media posts to check out an employee complies with the Act. Failure to do so, may result in fines.

Data Protection Impact Assessments (DPIA)

An agency of the Information Commissioner's Office European (referred to as the Article 29 Data Protection Working party) issued draft guidelines in July 2017 on DPIAs and how to assess whether data processing will result in a high risk to human rights. A final version of these guidelines is expected at the end of 2017.

The guidelines are not expected to be in force until 2018. In the meantime, employers should think carefully before searching a prospective employee's social media accounts.

What should employers do?

While the eight principles under the Act allow employers to use social media to screen their applicants, they must always adhere to the eight principles.

In addition, before searching personal accounts, employers:

must be sure that the search is relevant to how the prospective employee will carry out the work for which they are applying;
must be clear about why the search is being carried out;
should, as a matter of good practice, tell the job applicant that their public social media profiles will be screened (in the advert, before they submit their job application);
should not force prospective employees to "friend", "follow" or "LinkIn" with the employer; and
must not use the information obtained through the screening for other purposes afterwards – and certainly not in a discriminatory way.

Employers should exercise restraint

Employers who carry out excessive monitoring will be in breach of data protection laws and may breach privacy laws. Be sure about what you need to find out about a future employee - and exercise restraint.

* Source: Financial Times, "EU regulators clamp down on social media searches on job applicants".

Contact

To find out more about data protection laws and for advice on what you can and cannot do with regards to recruitment of new staff, contact Susan Mayall on 0161 684 6948 or make an enquiry.

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.