This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
Employers are increasingly carrying out social media checks on job applicants during the recruitment process in an attempt to uncover inaccuracies on CVs and to gather as much relevant information as possible about the individual before making an offer of employment.
Whilst the wish to carry out appropriate due diligence on a candidate is understandable given the potentially expensive and damaging consequences if an unsuitable appointment is made, employers need to bear in mind the data protection issues involved in the UK in vetting potential candidates in this way.
In the UK unlike France it is not the case that the screening process may be illegal (see the post "Social media screening of job applicants in France"). However, there are some guidelines to be followed. We set out below some broad principles taken from the UK ICO Employment Practices Code¹ which should be taken into account when considering whether and how to use social media checks as part of a recruitment exercise.
Do….
- Inform all candidates early in the recruitment process that social media checks will take place, at what stage, how they will be conducted and the sources used.
- Carry out the checks as late as possible in the recruitment process, for example, just before making an offer of employment.
- Ensure that the sources used for the checks are reliable.
- Ensure that the extent and nature of the check can be justified for the particular position.
- Give a candidate the opportunity to respond to information obtained as a result of a social media check and ensure that the response is taken into account in any recruitment decision.
Don't…
- Carry out social media checks on every candidate applying for a particular position.
- Routinely carry out checks in relation to every position. Generally speaking, social media checks should only be undertaken where there are particular and significant risks to the employer or its clients/customers and where no less intrusive or reasonably practicable alternative is available. It may, for example, be appropriate to carry out a social media check on a senior appointment whose on-line reputation would significantly impact on the employer, but this would less likely be the case for a more junior role.
- Retain information obtained by means of a social media check any longer than necessary and in any event no longer than six months. A record of the result of the screening and the recruitment decision can be retained.
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¹ The Employment Practices Code supplementary guidance (the "Code") together with , published by the Information Commissioner's Office (the "ICO") sets out a series of recommendations on how the legal requirements of data protection legislation can be met. The Code is not legally enforceable, but non-compliance with the Code may also constitute non-compliance with data protection legislation entitling the Information Commissioner to bring enforcement action against an employer.
