A marketing company in Texas recently reposted an ‘inappropriate’ Instagram picture, originally published by one of their job applicants. This ignited considerable backlash against the company and highlighted the increasing use of social media during recruitment.
Although employers are not normally as conspicuous with their social media screening (reposting pictures is not recommended), it is nonetheless no secret that some employers use publicly available social media during the recruitment process. According to a YouGov survey 70% of employers are likely to check a candidate’s social media profile; while one in five employers had turned down a candidate due to something they had seen on social media.
Recruiters aren’t just doing a quick search of a candidate’s profile, some organisations now conduct ‘social recruiting’ – advertising, sourcing and selecting candidates via social media platforms.
And it is easy to see why. Social media platforms are, in essence, people databases, providing information on a candidate’s job history, skills, hobbies and other standard information which typically appears on a CV or job application form.
Can employers find themselves on the wrong side of the law when ‘social recruiting’ or pre-employment screening?
Potentially, yes – social recruiting or screening could give rise to discrimination claims and may breach data protection laws.
Social screening and the risk of unconscious bias
Screening candidates on social media can provide a host of information, for example regarding the candidate’s age, ethnicity, religion, health, sexual orientation and family life. This is problematic for employers – the Equality Act 2010 makes it unlawful to discriminate against potential job candidates on the basis of these protected characteristics.
Acas warns that screening social media profiles can facilitate unconscious bias. For example, if an employer views a candidate’s profile and becomes aware of, or has a perception of, their age or ethnicity for example, they might unknowingly form a judgement. If that person is not interviewed and they bring a discrimination claim, defending the claim becomes more difficult when their social media profile has been viewed. As the employer was aware of the candidate’s protected characteristic it could be argued that this influenced the recruitment decision, even if it didn’t.
Advertising on social media
Many organisations advertise job vacancies on social media and this trend is likely to increase as Generation Z enters the job market. However, companies which purely advertise jobs on social media are not reaching a wide range of potential applicants and may find themselves at risk of discriminating against those who do not use social media (older people may be less likely than younger people to use social media for example). Acas advise posting adverts through other accessible mediums to attract potential employees who are not active online.
Data protection – are public profiles really open to all?
Although Facebook and Instagram profiles are often open to public viewing, these sites were not designed for professional job-seeking and hiring like their more business focussed counterpart, LinkedIn. This creates a conundrum for employers who may fall foul of data protection laws when gathering information from a candidate’s public (but personal) social media profile.
Under the General Data Protection Regulation (GDPR) employers must give job applicants certain information about how their personal data is collected and used. Commonly this is done via a privacy notice.
If social media screening forms part of the recruitment process, the privacy notice should make this clear (in the section outlining where personal information comes from); and set out the legal basis for processing the data. In this context the legal basis might be because it is necessary to enter into a contract; comply with a legal obligation; or for the employer’s legitimate interests (e.g. to select suitable employees, workers or contractors).
If any of the data amounts to sensitive personal data (e.g. details of sexual orientation) then one of the additional processing conditions needs to be set out too, for example to exercise or perform employment law rights or obligations.
If you use social media during recruitment – how can you mitigate the risks?
If your organisation intends to use social media during recruitment, ensure that staff:
- receive appropriate training on data protection and diversity laws;
- document the reasons for not progressing a candidate’s application;
- provide the company’s recruitment privacy notice to all job applicants; and
- are provided with clear rules and policies on social media use during recruitment and to what extent it should be used.
If you have any questions or would like to discuss the policies which you have in place, please get in touch with a member of the Brodies’ Employment Team.
You can also keep up-to-date on employment law matters by visiting Brodies’ Employment blog and by following us on LinkedIn or Twitter.
On December 3, 2019