Can you Google potential employees?

Legal Eagle / 01 July 2010

Three experts argue whether it is okay to use information found on social networking sites in the recruitment process

David Seals, Partner, Morrisons Solicitors
As this is a key management position, the prospective employer is naturally going to be careful when selecting the successful candidate. A candidate’s character and behaviour, professionally or otherwise, are legitimate considerations when recruiting.

The successful candidate is potentially going to represent the employer to clients and customers. It is right to consider the potential for damage to the employer’s reputation if an inappropriate person is given the job.

From a data protection perspective, the law states that if you are processing data, you are only allowed to use it for the purpose for which it was intended. When the candidate posted her photos on the social media site they weren’t intended to be used in connection with any employment and I doubt that Rebecca has obtained consent to carry out a check against this information.

Mathew Armstrong, Head of business development, PeopleChecking

The legal position, generally speaking, is that employers can hire who they want for whatever reason they want. Employers often hire candidates because they like them or because they have things in common with them instead of concentrating on the skills, experience, qualifications and aptitude relevant to the job in question.

Although this approach is not generally good recruitment policy, it is not intrinsically unlawful. However, what employers must be alive to are “protected characteristics” under UK discrimination law. These include gender, ethnicity, disability, sexual orientation (actual or perceived), religion or age.

In reality, it is normally impossible for a candidate in a case like this to know exactly why they have been rejected. But leaving aside the question of proof, an employer who treats a candidate for employment less favourably because of a protected characteristic is liable to be sued for unlawful discrimination. Compensation for unlawful discrimination can be unlimited.

If the pictures on the internet show the candidate doing something which brought into play a protected characteristic, then she would need to be careful in dealing with this. For example, a photo which indicated that the candidate was gay would be of concern if that was the reason the candidate was rejected.

But employers should be aware of less obvious examples. A photo showing a candidate participating in a demonstration about climate change could equally get the prospective employer into trouble.

In November 2009, the Employment Appeal Tribunal held that belief in climate change could be a protected characteristic under the Employment Equality (Religion or Belief) Regulations 2003, such that a person who had been selected for redundancy for this reason would have been unlawfully discriminated against and unfairly dismissed.

There is no general right to privacy under UK law. Individuals are protected by the Data Protection Act 1998 and under the Protection from Harassment Act 1997, but it is unlikely that any of these would be relevant in a case like this. Even if the candidate could show that the photos were uploaded without her permission it is very unlikely that this would assist her in challenging the decision to reject her for employment unless she could show the decision amounted to unlawful discrimination. Such a claim could not succeed unless the candidate had a protected characteristic and it was the reason for the rejection.

Karen Archer, Legal and operations director, Law Express

We all want to recruit the best person for the job, but as this dilemma highlights, finding them is increasingly difficult as the sources of candidate information – both formal and informal – grow and change.

Rebecca should revisit the basic principles of recruitment to make this hiring decision. Firstly, we need to ensure we do not select – or deselect – candidates on the basis of any discriminating factors. This discrimination applies to all aspects of the process, including advertisements, selection procedure, interviews and offers.

It is also worth noting that any references taken must legally be honest and fairly represent an employee’s record of achievements. Rebecca also needs to review the qualifications of the candidate and assess whether these are certified and relevant for the role. Recruiters may also consider a candidate’s personality – in so far as it can be assessed during the recruitment and interview process – and how this will ‘fit’ with other employees and the business as a whole.

It’s increasingly common that information provided online about an applicant is freely available to anyone who wishes to search for it. The issue of privacy is not relevant because you can presume that the pictures and blogs have been freely posted and are available to all. Given that she is at the second interview stage, I would suggest that you discuss it with the candidate and gauge their view and reaction to it.

One practical solution for the future may be to include in any application form a paragraph outlining the procedures your company may undertake when recruiting – for example, the recruitment process may incorporate related searches on the internet for personal profiles.

Mathew Armstrong, Head of Business Development, PeopleChecking

The rise in the popularity of sites such as Facebook – where users often post extensive personal information, photos and candid details of their personal exploits – has led to an increasing temptation to use this media as part of the vetting process. The sites can give a unique insight into the personal side of your potential employee. But before using this medium, we need to understand if it is legal and ethical.

As with many actions in business, the legality of such vetting is not entirely black and white. From a data protection perspective, the law states that if you are processing data, you are only allowed to use it for the purpose for which it was intended. When the candidate posted her photos on the social media site they weren’t intended to be used in connection with any employment and I doubt that Rebecca has obtained consent to carry out a check against this information.

Just looking at the information would not break data protection law. However, if the information was processed or used to make decisions as you suggest, it could be illegal.For example, social networking sites may display information about a person’s sexual orientation, age or religious beliefs that can be perceived to impact on the decision made to recruit or not recruit that person – this can lead to discrimination claims.

In addition, taking information from social networking sites is inadvisable as it cannot be validated. Without knowing the context of the photos, it is impossible to make an informed decision. Information on a social networking site is normally irrelevant to any job. It is unreliable, the legalities of using the information are questionable, leaving the employer open to a tribunal claim for discrimination and, I believe, it is unethical.

All employers should have a robust vetting system in place including checks on previous employers, education, right to work and criminal records. This process, coupled with good interviewing procedures, should be relied on rather than unverified information.