Employment Relations in the Social Media Era - Part 1/3

06 May

The social media era is upon us. For the majority of people, the internet is the first point of call for deciding whether a venue is worthy of a visit, to find out what are people saying about said venue and to post comments on how they found it after their trip.

That said, it seems it’s not much different in relation to potential employers and employees. Social profiles of companies and individuals are more and more being ‘checked out’ in order to establish a whether they may be a good match.

Social Media in Recruitment

Pre-employment checks, often referred to as ‘vetting’ are designed to establish a candidate’s eligibility, including their right work in the UK and criminal record background.

The Data Protection Act states that anyone who processes personal information must comply with eight principles, which make sure that personal information is:

  • Fairly and lawfully processed – candidates should be aware that checks may take place.
  • Processed for limited purposes – employers should be clear about the purpose of the checks. This will help them to decide what kind of information should be collected.
  • Adequate, relevant and not excessive – the monitoring and collection of information should be limited to what is relevant in the circumstances of each case.
  • Accurate and up to date – employers need to be sure that the profiles they access do genuinely belong to the person being vetted.
  • Not kept for longer than is necessary – employers should not retain information if they do not intend to use it in future. Clear retention schedules should be developed.
  • Processed in line with individual rights – in particular, individuals should be able to exercise their right of subject access to obtain copies of the information held.
  • Secure – the information must be protected against external threats (for example hacking) and access to the data within an organisation should be limited to those staff who have a business need to see the information.

Avoiding Discrimination

Care needs to be taken by employers to avoid any discrimination during this process. Depending on the circumstances, if a candidate is not appointed as a result of information gleaned, the possible claims may include:

  • A breach of the Data Protection Act 1998 as described above.
  • Age discrimination – it has been suggested that the over 50s age group will be more cautious with their social media presence than the under 30s, resulting in more potential for negative recruitment decisions for younger people.
  • Sex discrimination – information about people’s marital status, numbers of children etc. may inadvertently influence a selection decision.
  • Disability discrimination – information about people’s physical or mental state, such as revealing depression to their friends on social media, may also lead to a claim.
  • Sexual orientation discrimination – if a prospective employer reacts negatively to information disclosed on social media about sexuality, this may lead to a claim.

CIPD recommend following these general principles if accessing candidates social media profiles:

  • Respect the same restrictions that apply to offline checks (for example interviews) in relation to discrimination.
  • Take reasonable steps to ensure the accuracy of information accessed online.
  • Distinguish between social media for mainly private purposes and social media for mainly professional purposes. So use of LinkedIn is legitimate but don’t use Facebook.
  • Personal data may be accessed insofar as it is relevant to suitability for the role and relates to candidates’ personal capabilities and skills, education and experience.
  • Social media searches should be used to look for specific information and not as a general trawling exercise.
  • Social media searches should be carried out as late in the recruitment process as reasonably practical.
  • Applicants should be informed at the outset if online sources may be used to collect information about them.
  • Information generally available online (for example through Google) can be used.
  • However, employers should collect no more personal information than is needed, and should not collect information that is irrelevant or excessive.
  • Applicants should be given an opportunity to respond to material findings from online searches, where the findings form part of the decision-making process.
  • Personal data collected during the recruitment process should not be kept for more than two years where the applicant was not hired.
  • Employers should develop a clear policy towards the use of social media for recruitment purposes, in consultation with employees or their representatives.

We recommend that all businesses develop a social media policy to guide staff and set the standards of behaviour for employees' use of social media throughout the employment relationship.

For help or advice with this contact us on 020 8150 9960 or email enquiries@lotushr.co.uk.

Blogs coming soon

Part 2/3 - Social Media and Staff Conduct

Part 3/3 - Social Media and Company Contacts Post-termination