October 30, 2018
The checking of a candidate’s social media is now a standard part of pre-employment screening. According to recent research by YouGov, up to 80% of employers are likely to check a candidate’s social media accounts as part of their recruitment and onboarding procedure. Employers are also involved in checking social media belonging to current employees of the company. But with the highly publicised onset of GDPR, along with the severe repercussions of not complying (fines can run into their millions), employers must ensure that their checking processes are appropriate and do not put them at the risk of breaking the law.
GDPR is predominantly about consent to view and use someone’s personal data, as well as ensuring that only those who have justifiable cause to view the data do so.
Employers should notify candidates before viewing their social media accounts, and consent should be obtained in a clear and easy to understand the manner in line with the data protection legislation. Employers should also ensure that candidates are aware of exactly what their consent means, what information they are giving access to and how that information will be used.
GDPR also requires that employers only view social media profiles when the information is relevant to the position they are applying for.
Even though a person has not made their online social media profile private, this does not allow for an employer who has obtained the data about the person through a recruitment process to use it to screen a personal social media account of a candidate or employee.
If a candidate is rejected and they subsequently learn that their account has been reviewed prior to that rejection, it may give the candidate the ability to argue that the reason for their rejection was on discriminatory grounds.
Given that younger people will be more likely to have social media accounts than older people, it also presents a risk of the review being indirectly discriminatory on grounds of age.
Where the employer can point to a specific reason why they need to undertake the review that would objectively justify doing so then they would be able to defeat such claim but, again, it is placing the employer at heightened risk. Obtaining consent and making a candidate or employee aware that such checks of their social media may take place is the correct way to proceed in this instance.
While there are clearly some legitimate reasons to review an employee’s social media, employers should do this while fully aware of the risks this could present. We would, therefore, recommend seeking the advice of an experienced employment solicitor.
Our team here at Prosperity are experienced in advising on fair practices and discrimination and have a wide knowledge of GDPR in the context of recruitment and employment. Contact us today.