According to research by Acas, 45% of recruiters use social media tools to vet job applicants. Sarah Beeby of Dentons considers the legal pitfalls employers need to be aware of if they decide to adopt this approach.

Traditional vs online vetting

Vetting plays a key role in conducting due diligence in recruitment. Research conducted by the Chartered Institute of Personnel Development shows that two out of five employers look at applicants' online presence on sites such as Twitter, Facebook or LinkedIn at the start of the recruitment process. Discrimination laws apply equally to online and offline vetting. Although online vetting is lawful, organisations need to be careful they are not basing recruitment decisions on discriminatory factors such as age, race, sex, religion, sexual orientation or political beliefs.

Online vetting allows for wider exploration of aspects such as personality and organisational "fit" that are not easily found by traditional recruitment screening. However, using social media tools for vetting poses ethical and serious legal risks. Surprisingly, only 28% of the recruiters in the Acas survey identified that online vetting may give rise to possible discrimination based on candidates' personal characteristics.

A true picture of candidates?

Social media sites are valuable resources for identifying qualified candidates, and communicating with and recruiting applicants to fill positions. Organisations need to understand, when using social media as part of their recruiting process, the risks when the process moves from sourcing to screening candidates.

A survey by CareerBuilder.com found that one third of employers using social media tools to vet candidates had found information that caused them to disregard applications. Reasons for “vetting out” candidates included:

  • displaying poor communication skills

  • posting evidence of "undesirable" habits

  • revealing information that shows they have falsified qualifications listed on a CV

  • posting content that disparages previous employers and colleagues.

However, employers are losing potentially good employees by eliminating candidates based on erroneous assumptions. Researchers from North Carolina State University found that "there is no significant correlation between conscientiousness and an individual's willingness to post content on Facebook about alcohol or drug use" (Examining Applicant Reactions to the Use of Social Networking Websites in Pre-employment Screening, Journal of Business and Psychology, November 2013).

Where candidates suspect underhand use of social media tools to vet, they are more likely to perceive the hiring process as unfair and are more inclined to consider legal action. Organisations also face the risk of reputational damage. The use of social media tools could be a breach of privacy laws and data protection legislation. Candidates are likely to post sensitive information on blogs that is not intended for prospective employers.

Social media tools should not be used as a screening device where they allow employers to obtain information that the employer could not legitimately ask the candidate to supply. Examples include:

  • his or her marital status

  • whether he or she has children

  • what his or her beliefs are.

However, social media provides a platform where such information can be easily accessed. For instance, information on activities, interests and favourite quotes on sites such as Facebook may allude to religion, political belief or sexual orientation, opening the door to unconscious and unintentional biases.

The legal risks

There are four main legal issues that can arise during the use of online vetting.

  1. Discrimination. Under the Equality Act 2010, a candidate can successfully bring a discrimination claim if an employer refuses to interview them due to a perception that they have a protected characteristic (such as that they are homosexual, for example) even if they do not have that characteristic. When faced with legal challenges, employers may have documents evidencing the relevance of searching for and retaining personal information. There is a danger that a paper trail would show the extent of the search and, in some circumstances, reveal sensitive information at the employer's disposal, regardless of whether the employer had considered it or not.

  2. Use of inaccurate information. There is a risk of legal challenge where a candidate is not hired on the basis of inaccurate information obtained without his or her consent.

  3. Privacy. Candidates have the right to protect the processing of their personal information under the Data Protection Act 1998. It is unclear how far a "right to privacy" applies to material published on social media platforms. However, an employer is unlikely to fall foul of this in the absence of printing or forwarding the profile to someone else. It would also be difficult for a candidate to argue privacy over material uploaded to the public sections of his or her social media profiles.

    Legally, this is uncharted territory. The key legal questions are whether:

    • the candidate consented to the information being available to everyone

    • the information is relevant to the employment decision

    • the information falls within a protected realm of personal privacy, even if a person makes the information available to the public or does not use provided privacy settings.

    The Data Protection Act 1998 requires that personal data must only be obtained for specified and legal purposes.

  4. Equality. Good practice should restrict recruiters from accessing demographic information about candidates that is considered irrelevant to their ability to do the job. The opportunity for employers to carry out informal, undocumented online searches means that this standard can be easily circumvented. Information gained from social media tools allows an organisation to identify, either intentionally or unintentionally, a wide variety of characteristics to which it would not otherwise be entitled to have access. The quality of information available for each candidate would vary, therefore organisations risk using different standards for different candidates.

Good practice

To avoid the risks outlined in this article, organisations should consider applying the following principles.

  • Distinguish between social media platforms used for mainly private and mainly professional purposes. Using LinkedIn may be legitimate, however Facebook may be deemed mainly for private purposes.

  • If it is deemed necessary to screen candidates for “unprofessional” qualities, such as drug use, use a neutral third party to conduct the search, rather than social media. Any protected information should not be relayed to the employer and searches should be carried out as late in the recruitment process as possible.

  • Respect the same restrictions that apply to offline checks in relation to discrimination.

  • Access personal data only to the extent that it is relevant to the suitability of the role and relates to the candidate's personal capabilities and skills, education and experiences. A candidate's profile should not be searched unless the employer is looking for specific information directly relevant to the job.

  • A candidate should be informed at the outset if online sources may be used to collect information about him or her. Candidates should have an opportunity to respond to material findings if their online profile has formed part of the decision process.

  • Organisations should develop a clear policy regarding the use of social media in recruitment.

  • Although it may not be possible to verify that information obtained is correct, reasonable steps should be taken to ensure the accuracy of any information accessed online.

  • Personal data collected during the recruitment process should not be kept for more than two years where the applicant is not hired.

Approach with caution

In light of the inconsistency of online material and the potential risks of uncovering information an organisation should not have or use in making a decision, it is sensible to reserve social media tools for elements of recruitment that are not related to vetting. From a legal standpoint, the problem does not necessarily lie with the fact that employers are making decisions influenced by information they find on social media, but that this is often information that they would otherwise not be entitled to know about. From a practical standpoint, if an employer digs deep enough on any candidate, they are bound to find something undesirable so, to a certain extent, it may be a case of some stones being best left unturned.

Last reviewed 31 March 2014