Can I monitor job candidates' social media?

Social media is often used as a source of entertainment or staying in touch with friends and family. However, content that people assume to be personal may sometimes be used by the employers to screen prospective and current employees. A social media screening is usually undertaken at the recruitment stage, and involves reviewing their social media profiles. Generally, employers are looking for any red flags like sharing of illegal activities, offensive comments, violent or aggressive behaviour, sexually explicit material, or confidential information.

Why monitor social media?

There are many valid and justifiable reasons for monitoring employee’s social media, including:

• to protect the interests of the company and its confidential information
• to maintain business reputation
• for marketing and advertising purposes
• ensuring compliance with post termination restrictive covenants 
• managing any misconduct arising from social media

Employers, considering the context in which they operate, have to carefully consider whether it is appropriate and necessary to monitor social media, as it does not come without risk of violating the privacy of the individual.

Disadvantages?

Social media screening can reveal information about the candidate which is beyond their resume. However, this bears a certain level of risk. Monitoring social media has certain disadvantages, including:

• it can create a “Big Brother” culture where people feel they are being continuously watched, leading to poor engagement
• employees may feel they have no privacy at work
• it can signal a lack of trust
• there are legal issues associated with monitoring, such as human rights laws
• opens the door for potentially discriminatory decisions

Legality

Some information revealed through a social media screening is protected by privacy and data protection legislation and therefore cannot be used in recruitment decisions. Not complying with data protection laws could create problems for employers.

Other social media check risks include making recruitment decisions based on protected characteristics, which may not be compliant with the Equality Act 2010.

While there are significant risks, social media checks itself are still legal, provided they are conducted lawfully and correctly. However, some of what may be discovered through the checks may be information that employers are legally prohibited from taking into account when evaluating candidates. Processing personal data without reasonable grounds will be seen to be illegal.

Steps employers can take

Employers contemplating using social media checks at recruitment stage must not fall foul of the data protection laws and conduct illegal checks. They should take the following steps to avoid this:

• Have a sound policy, and procedural guidelines in place so that you are clear with employees on what you do, how and why.

• Use a third party background check agency in order to ensure that the protected characteristic information is filtered.
• Ensure that you look at accurate and correct information as social media information is easy to manipulate and spoof.  Check any information that seems relevant or that you have concerns about.
• Undertake a data protection impact assessment whenever there is a change to the way that person information is processed and regularly as a matter of course to ensure that you are acting within the law.

Speak to our employment solicitors

If you'd like to learn more about the laws on monitoring candidates on social media, or make an enquiry with one of our employment law solicitors, contact our Employment Team today by calling 023 8071 7717 or emailing employment@warnergoodman.co.uk.