Last reviewed 14 July 2022
The Government has amended the statutory guidance for schools and colleges in England to include a new section on carrying out online checks as part of the recruitment process. We look at the key implications for employers.
In January 2022, the Department for Education published a consultation on proposed changes to the statutory guidance for schools and colleges in England — Keeping Children Safe in Education (“KCSIE”). The Government has now published its response, alongside a draft of the revised KCSIE guidance so that schools and colleges can plan for when the updated guidance comes into force on 1 September 2022.
The Government’s response explains that they wanted to test whether schools and colleges agreed to a proposal that they should consider conducting online due diligence checks on publicly available information about candidates shortlisted for a post. Seventy per cent of respondents to the consultation supported the proposal. However, respondents’ main concerns were that the scope of online searches is too vast, and some information on social media can be unreliable, misinterpreted or even fake.
Whilst the Government’s response notes that many schools and colleges already carry out online searches as part of their safer recruitment processes, some feel uncomfortable with searching candidates’ social media history and feel this is an invasion of privacy.
The Government has decided to implement the proposal by adding a new paragraph to the shortlisting section of the KCSIE guidance which provides that as part of the shortlisting process, schools and colleges should consider carrying out an online search as part of their due diligence on shortlisted candidates. Schools and colleges can choose not to carry out an online search, but those who take this approach should record their reasons for their decision and ensure candidates are treated consistently.
The revised KCSIE guidance (“the revised guidance”) provides that the purpose of the online search is to “identify any incidents or issues that have happened, and are publicly available online, which the school or college might want to explore with the applicant at interview”. The online search should be carried out on candidates once they have been shortlisted but before the interview stage. The focus of the search should be to find information that indicates that the candidate is not fit to work with children or students. If any such information comes to light as a result of the online search, the employer should put this to the candidate at interview and give them the opportunity to explain their version of events before the employer decides whether to offer the candidate the role.
The expectation appears to be that schools and colleges will not need to go through a shortlisted candidate’s whole social media presence when conducting an online search, but they should enter a shortlisted candidate’s name (including any other versions of their name provided by the candidate on their application form) into a search engine to see what information comes up. However, there is some uncertainty for employers as this is not clarified in the revised guidance. It is hoped that the Department for Education or Ofsted will confirm the correct approach before 1 September 2022.
What should employers do?
Affected employers will need to review their recruitment procedures to prepare for when the revised guidance comes into force on 1 September 2022. The revised guidance does not give any further detail on how to conduct the online search, so schools and colleges will need to consider issues such as which websites they are going to search and how far back they are going to go. Employers should follow the same process for each candidate, eg adopting the same time period for the search and searching the same websites, to avoid any discrimination claims.
Schools and colleges should review, and update where necessary, their data protection policies and privacy notice for candidates. They will need to make sure that they comply with data protection when conducting online searches and ensure that they have a lawful basis for processing the personal data that they obtain from the search. The lawful basis in these circumstances is likely to be that the employer is complying with a legal obligation, but this will only apply if the search is carried out in line with the revised guidance. If special category data is found during the search such as data about the candidate’s health, ethnicity, religious beliefs or sexual orientation, the employer will need to identify a separate condition for processing this data under the UK GDPR.
Employers in other sectors who want to carry out online searches as part of their recruitment processes will need to follow the same principles, for instance, adopting a standard process that treats candidates fairly and consistently, ensuring that the information is not used in a discriminatory way in the decision-making process and complying with data protection.