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Is it OK to check a prospective employee's social media profile?

PUBLISHED: 15:59 28 August 2018 | UPDATED: 15:59 28 August 2018

Matthew Clayton of Willans (c) Clint Randall / www.pixelprphotography.co.uk

Matthew Clayton of Willans (c) Clint Randall / www.pixelprphotography.co.uk

Clint Randall - pixel pr photography

When does social media become anti-social? Matthew Clayton, partner of Willans LLP, explains

Staying on the right side of the law around recruitment: Is it OK to check a candidate’s social media profile?

Recruitment takes time and effort, and so understandably employers want to find the right person as quickly as possible. But, as Matthew Clayton explains, it’s vitally important for employers to be cautious when conducting pre-employment checks - even down to that ‘informal snoop’ on social media...

It is understandable that businesses want to check whether or not candidates pose a threat to their organisation, or to try to identify exaggerated claims of experience, skills or qualifications. But in doing so, employers must be alert to their legal duties relating to data protection and discrimination, particularly now in the post-GDPR age.

Research of a candidate’s social media profile should be done carefully. Personal data obtained during a recruitment process is subject to the GDPR, so it is important that employers consider how they process and store this data – and for how long. Employers should also be transparent with candidates that they are doing this.

Furthermore, remember that information posted on social media accounts may not be credible or truthful, and therefore (for public sector employers) relying on it may be in breach of Article 8 of the European Convention on Human Rights (right to a private and family life). A social media page might contain personal information, the knowledge of which may lead to subsequent action being considered discriminatory, and this is important given that discrimination legislation protects job candidates as well as employees.

It is possible, too, that an unsuccessful and disgruntled candidate may make a subject access request in an attempt to establish whether discrimination was at play. Remember that under GDPR, you’ll need to respond to these within a month, and provide a more detailed level of information than before. You therefore need to ensure that all emails/notes on file clearly identify objective reasons for declining an application and focus on skills, experience and performance at interview.

Pre-employment checks are just a small part of the recruitment process, and the complex nature of UK employment law means that a simple mistake can turn into a costly headache for an employer, no matter how small their organisation. If you are a HR professional, a director or executive responsible for risk management, and you feel you’d benefit from peace of mind that your recruitment practices are legally compliant, please do join us for our next half-day employment law workshop in October. We’ll be available to answer your burning questions, and sharing advice on what is and isn’t allowed when it comes to recruitment.

Willans’ employment law team helps organisations day-in-day out - from not-for-profits to SMEs and multi-national companies - with awkward employee situations. For responsive, clear legal advice and support, contact Matthew at matthew.clayton@willans.co.uk or call 01242 514000.

Get confident in the law on recruitment:

Upcoming workshop -

Date & time: Wednesday October 3, 9am-1:30pm

Venue: Stonehouse Court Hotel, Stroud, GL10 3RA

Ticket cost: £35 including VAT, lunch, refreshments and networking opportunities

Booking: For more information on how to reserve your place, please visit willans.co.uk/events/ or call 01242 542931.

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