Social Media Screening in Recruitment

Social Media Screening in Recruitment

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Social media has changed how people and businesses interact, presenting both opportunities and risk.

In the context of recruitment, employers routinely use social media platforms to advertise vacancies and to promote their employer brand. It has also become increasingly common practice for employers to use social media screening to find out more about job candidates.

In this guide for employers, we look at what social media screening is and how it can be used as part of a lawful and effective recruitment process.

 

What is social media screening?

 

Social media screening is normally done as part of the recruitment process. Studying a potential employee’s social media presence entails looking at their posts, likes, and comments on platforms such as LinkedIn and Twitter.

LinkedIn is the primary platform for employers to check given it is a predominantly professional and work-related, and candidates’ LinkedIn profiles are generally seen as an expanded CV.

However, employers may also delve into other platforms such as Facebook, TikTok and Instagram for a better sense of what a candidate is ‘really’ about, and how they present themselves to the world on these public and open online spaces.

 

Ethics of recruitment social screening

 

Employers can potentially discover a lot of things about people based on their social media profiles. But most of those things probably won’t directly correlate with their ability to perform in the role being recruited.

It’s important to have a clear idea of what you’re looking for and why. As part of the recruitment process, employers should be looking for reasons to hire someone, not reasons to reject them. Every employer has red flags, but if you’re actively looking for skeletons in a candidate’s digital closet, you’re already starting out with the wrong intent.

 

Is social media screening allowed when recruiting?

 

There is no law prohibiting or restricting employers from checking candidates’ or employees’ social media. However, social media screening of job candidates can raise concerns about privacy and the processing of this personal data raises data protection considerations.

Additionally, employers also have to proceed with caution when choosing how to use this information, since some of what may be discovered through the checks may be information that employers are legally prohibited from taking into account when evaluating candidates.

 

Data protection issues

The UK’s ICO is expected to produce specific guidance on this area, but in the meantime, based on the information and guidance that has been made available to date, an employer must:

 

  • ensure that it has a legal ground for such processing, eg legitimate interests
  • before inspecting an applicant’s social media profile, consider whether it is related to business or private purposes; this can be an important indication of whether inspecting it is admissible or not
  • only collect and process personal data relating to job applicants to the extent that doing so is necessary and relevant to the performance of the job which is being applied for
  • delete data collected during the recruitment process as soon as it becomes clear that an offer of employment will not be made or is not accepted by the individual concerned
  • correctly inform the individual that it will be reviewing their social media profiles before the individual engages with the recruitment process
  • not require potential employees to ‘friend’ the potential employer, or provide access to the contents of their profiles in any other way; the ‘Article 29 Working Party Opinion’ states that there is no legal ground for an employer to do so

 

The Article 29 Working Party Opinion gives the example of an employer who, while recruiting new staff, checks the profiles of the candidates on various social networks and includes information from these networks (and any other information available on the internet) in the screening process.

It states that the employer may be able to rely on the legitimate interests condition (to review publicly available information about candidates):

 

  • if it is necessary for the job to review information about a candidate on social media, eg in order to be able to assess specific risks regarding candidates for a specific function, and
  • the candidates are correctly informed, eg in the text of the job advert

 

A cautious approach is needed which acknowledges the employee’s reasonable expectation of privacy and the extent to which an individual’s online activity is relevant in determining their suitability for the position applied for. This is particularly so when looking at personal social media profiles as opposed to professional networking sites such as LinkedIn.

 

Discrimination issues

Employers should also be careful about conducting searches of social media to screen job applicants because online profiles may reveal information about protected characteristics which was not available from the application form itself.

Social media profiles and content by their very nature contain a lot of personal information, which is frequently not routinely acquired as part of the recruitment process. Examples include gender, colour and ethnicity, disability, pregnancy status, sexual orientation and religious or ethical convictions — all of which are protected characteristics under discrimination law.

If this information is viewed by the recruiter and the application is rejected, it could be difficult for employers to explain that they turned down the prospect for genuine reasons. This could leave the employer open to claims of discrimination if the person responsible for recruitment acts unlawfully in relation to that information. For example, an employer would commit an act of direct discrimination, which is prohibited under the EqA 2010, if it:

  • searches for an applicant via Facebook and discovers that she is gay and decides not to interview or hire her because of that
  • discovers an applicant’s religion via tweets on the applicant’s Twitter profile and decides to reject the application because of that

 

Unconscious bias

Social networking is assumed by most to have a minimal bearing on professional life – and this should be factored in by recruiters who are examining an applicant’s professional credentials. This indicates that the relevancy of information gleaned from a social media search should not be the determining factor in a candidate’s appointment.

The fact that a person is politically engaged, has specific hobbies, supports a particular sports team, enjoys travelling and an active nightlife, or has certain hobbies does not necessarily exclude them from being an outstanding employee.

People from different backgrounds, cultures, and life experiences will all use social media differently. Your interpretation of what they share is likely to be prone to bias. And you aren’t going to get the same amount of information about every candidate.

The risk is heightened because screening of this sort often take place outside of the formal recruitment process, so managers may be more vulnerable to accusations that they have (consciously or unconsciously) been discriminatory in their decision-making process.

 

Red flags and unwanted behaviours

There may be cases in which a social network search raises red flags, and could be a valid reason for an applicant’s rejection. A candidate could, for instance, be particularly active in posting and encouraging misogynistic or racist comments, as well as radical or unpleasant political beliefs.

In this situation, the employer must balance the social media information obtained with efforts to better understand the individual. If they do not, they risk having to defend themselves against charges of bias and improper use of social media information.

 

Do you need consent?

 

Fundamentally, having a presence on social media is voluntary and the information is considered to be in the public domain. This means that profile owners are not legally required to grant permission for prospective employers to review their public profiles.

However, it is advisable for employers to notify candidates before viewing their social media accounts, and to obtain consent in a clear and easy to understand the manner in line with the data protection legislation.

While this remains best practice, it is worth noting that the data protection working group referred to above takes the view that employers cannot rely on applicants giving consent to screening because the imbalance of power between you means that consent in these circumstances is unlikely to be valid.

 

Best practice for employers

 

For employers, to avoid the risk of having to defend against accusations of illegitimate, or even unlawful, rejections, they need to consider carefully how you are using the information in the decision-making process.

Whenever and however you obtain information about an individual for recruitment purposes, data protection law requires you to balance the individual’s right to respect for private life against your need to obtain relevant information.’

 

Be consistent

You have to treat all candidates equally. That means if you screen the social media account of one candidate, you should be doing the same for allcandidates.

Also, be consistent in how you search. Use the same process and check the same platforms to avoid bias. Failure to be consistent can lead to discrimination, and you may end up running afoul of the law. So you might want to set your process in stone by documenting it for all relevant staff members.

 

Adopt a policy on social screening

Consider whether online screening is necessary and relevant for particular roles.

Implement a policy advising managers on the use of online screening, the need to be objective in their decision-making and how to comply with data protection law.

Inform applicants that you use screening and the reasons for this.

 

Obtain consent

Before looking up prospective employees, you should make them aware of your screening process. Create a written policy that you can share with candidates, detailing what you will be searching for, who sees the results, and any privacy considerations. Obtain consent and make a candidate or employee aware that such checks of their social media may take place.

 

Focus on the professional

Social media screening for employment should be focused on employment. You should primarily look for information related to a candidate’s professional life.

 

Watch out for red flags

You can’t expect candidates to be completely professional on non-professional social media platforms. Nor should you confuse your personal opinions with those of your company. Be clear on what constitutes red flags – illegal behaviour, racist or abusive language, or anything else that completely goes against your company values.

 

Need Assistance?

 

DavidsonMorris’ specialist employment lawyers are experienced in advising employers on all aspects of recruitment, including guidance on how to ensure compliance with your legal obligations through the recruitment and onboarding process. Through our fixed-fee service Triple A, employers can gain access to unlimited employment law advice. For more information about Triple A, or how we can help your organisation, speak to us.

 

Social Media Screening FAQs

 

What is social media screening?

Social media screening involves reviewing a candidate’s social media profiles to gather information that may be relevant to their suitability for a job role. This can include assessing their professional presence, personality, and any potentially concerning behaviour.

 

Is social media screening legal in the UK?

Social media screening is legal in the UK, but it must be conducted in compliance with relevant laws, such as the General Data Protection Regulation (GDPR) and the Equality Act 2010. Employers must ensure they do not discriminate or invade the privacy of candidates.

 

When should social media screening be conducted?

Social media screening is typically conducted during the later stages of the recruitment process, after initial assessments or interviews. It should be used as a supplementary tool rather than a primary method of evaluating candidates.

 

Is it OK to check social media of candidates?

Social media checks are lawful provided they are handled correctly and that the information and data that is discovered is used in a lawful way.

 

What is social media screening for applicants?

Professional social media screening services are used to identify from a candidate’s online presence negative behaviours such as bullying, racism and mysogyny.

 

Can employers look at your social media UK?

There is no law prohibiting or restricting employers from checking candidates’ or employees’ social media.

 

What should employers look for in a candidate’s social media profile?

Employers might look for consistency with the information provided in the candidate’s application, evidence of professional achievements, and general behaviour that reflects on their suitability for the role. However, they should avoid making decisions based on protected characteristics or personal opinions.

 

Can social media screening lead to discrimination claims?

If not conducted properly, social media screening can lead to discrimination claims. Employers must ensure that they do not make decisions based on protected characteristics, such as age, gender, race, or religion, which could result in unlawful discrimination.

 

How can employers ensure fair social media screening?

Employers should develop a clear policy outlining the purpose, process, and criteria for social media screening. It’s important to focus on job-relevant information and to apply the same standards consistently across all candidates.

 

Do employers need to inform candidates about social media screening?

While it’s not legally required, it’s considered good practice to inform candidates that social media screening may be part of the recruitment process. This transparency can help build trust and ensure candidates are aware of how their information will be used.

 

What are the risks of relying too heavily on social media screening?

Relying too heavily on social media screening can lead to biased decisions, invasion of privacy, and potential legal issues. It should be used as one of many tools in the recruitment process, rather than the sole basis for decision-making.

 

Should employers consider the context of social media posts?

Context is crucial when evaluating social media content. Employers should consider the time, situation, and tone of posts before making any judgments about a candidate’s suitability for a role. Misinterpretation of context can lead to unfair assessments.

 

Glossary

 

 

Term Definition
Social Media Screening The practice of reviewing a candidate’s social media profiles to gather information that may influence their recruitment suitability.
General Data Protection Regulation (GDPR) A regulation in UK law on data protection and privacy for all individuals within the European Union and the European Economic Area.
Equality Act 2010 A UK law that legally protects people from discrimination in the workplace and in wider society.
Discrimination Unfair treatment of a person or group based on characteristics such as race, gender, age, or religion.
Bias A tendency to have a prejudiced perspective or favouritism towards or against someone or something, often in an unfair manner.
Protected Characteristics Specific characteristics protected by law, such as race, gender, age, disability, religion, or sexual orientation, against which discrimination is prohibited.
Privacy The right of individuals to keep their personal information and activities private and free from unwarranted intrusion.
Social Media Profile An individual’s online presence and activity on platforms like LinkedIn, Facebook, Twitter, etc., often reviewed by employers during recruitment.
Recruitment Process The sequence of steps an employer takes to identify, attract, screen, and select suitable candidates for a job.
Professional Presence The way a person presents themselves professionally online, including their work-related posts, connections, and overall image.
Reference Checks The process of contacting previous employers or colleagues to verify a candidate’s work history and performance.
Psychometric Testing A method of assessing a candidate’s suitability for a role through standardised tests that measure mental capabilities, behaviour, and personality.
Structured Interviews A type of interview where each candidate is asked the same set of predetermined questions in the same order to ensure fairness and consistency.

 

Author

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

Read more about DavidsonMorris here

 

Legal Disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct at the time of writing, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

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