Is it Snooping if You Check Employees’ Social Media Posts?

Unlike the Prime Minister, few employers these days could resist the temptation to look at candidates’ activity on social media but is this actually permissible under the new GDPR? Read on to find out what you can and cannot do when checking job applicants’ online profiles.

Risks of Screening Candidates’ Online Presence
You’re clearly entitled to look at what candidates say about themselves on LinkedIn but there’s some debate about whether it’s ‘snooping’ to look at what job applicants tweet or post in a non-professional capacity. There are also some other pitfalls you need to avoid.

It would seem to make sense that you’re entitled to read anything which is publicly available and that people should use privacy settings if they don’t want to broadcast their opinions or antics to the world. However, there have been suggestions that the GDPR could put an end to employers checking job applicants’ digital profile. This is because the legislation focuses on what people meant their information to be used for – if they never intended a prospective employer to look at it, you might be breaching their privacy by accessing it.

Last year, the Article 29 Working Party, a group made up of the EU’s national data protection watchdogs, including the UK Information Commissioner’s Office, said businesses should not check job applicants’ online profiles as part of the screening process unless they are relevant to the job (which would appear to cover LinkedIn). The guidance added that: ‘Employers should not assume that merely because an individual’s social media profile is publicly available they are then allowed to process the data’. The advice is not legally binding but the data protection authorities will consider it when applying the law.

Another hazard is if a candidate has a protected characteristic, such as having a disability (or having a family member with a disability), being gay or having strong religious or political views. If they think you’ve found this out by looking at their social media accounts and suspect this is why you’ve turned them down, they could issue a discrimination claim.

3 Tips to Avoid Online Vetting Hazards

  1. Don’t ask to be a candidate’s Facebook friend so you can check their private posts: the Article 29 Working Party guidance warns against this.
  2. Until there’s some case law that says otherwise, if you do look a candidate up online and find something damaging, the safest option is not to tell them that this is why you’re turning them down. Find another reason (one that’s not based on one of the nine protected characteristics) – or give no reason at all.
  3. Take care if you share your decision-making with colleagues. This is because a failed applicant may make a subject access request under the GDPR, which means that you have to give them
    a copy of all the information you hold on them. If they find out through a disclosed memo or email that you read material about them online that they consider to be personal or that identifies a protected characteristic, they might bring a claim.

What You Can Look for Online

It’s still unclear whether the GDPR is a serious barrier to looking up publicly available information about a candidate online. Arguably,  a bigger risk – as Theresa May found out – is not checking
their online activity.

According to a survey by Monster.co.uk and YouGov, more than a third of UK employers have turned down a candidate based on their Facebook, Instagram, Twitter or LinkedIn profile, with more than half saying a candidate’s online reputation influences their hiring decision. Nearly two-thirds said they Googled a candidate during the hiring process.

So if you do decide to look at job seekers’ social media profiles, what should you be checking?

Looking on LinkedIn is uncontroversial, so start here. Things to consider include:

  • Is the person well connected?
  • Do their education and career history fit with their CV or application form?
  • Do they have any recommendations or endorsements?
  • Do they list any interests and, if so, what do they tell you about their character (e.g. whether they’re social or creative)?
  • Do they do any volunteering?
  • Do they have a professional-looking photo?
  • Do you think they’ll fit well with your organisation (taking care to avoid any unconscious bias)?

If you go further and look at Facebook, Twitter or other sites, limit this to looking for any ‘red flags’. Are any public postings or tweets aggressive, foul-mouthed, intolerant or incoherent? Does the content raise alarm bells, for example, because it’s incriminating or sexually explicit? Has the person been publicly disparaging about previous employers?

Bear in mind that you won’t be getting an equal amount of information about each applicant – the person whose private life appears to be beyond reproach may just be better at keeping their private information hidden.

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