December 11, 2013
The debate over the right to privacy of job applicants whose activities may be checked on social media websites such as Facebook, LinkedIn and Twitter, has led to some confusion over what is legally acceptable. Employers’ body the CIPD’s recent social media research revealed that two in five employers look at candidates’ online activity or profiles to inform recruitment decisions, but few inform applicants as a matter of course that this is being done. But just how aware are employers of the legalities around this kind of vetting? Managers have wide discretion within the law to decide whether or not to recruit a particular candidate, but to avoid risk of legal challenge they should be fully aware of the law on data protection and discrimination in employment. The CIPD has now published some useful guidance on what constitutes good practice.
Drawing on consultations with HR professionals and employment lawyers, ‘Pre-employment checks: an employer’s guide,’ offers advice to employers who are struggling to keep up with the pace of change in recruitment methods. The guide highlights the need for recruiters to exercise due diligence to find out if applicants might bring the organisation into disrepute, or cause difficulties with managers, colleagues, customer and suppliers.
It also highlights the legal risks and ethical challenges involved if inappropriate steps are taken or applicants are not made aware of the checks being carried out and given a chance to respond to findings.
Some key recommendations include:
- Employers can help to manage the risks of candidate dishonesty by using declarations of truth and ensuring employees give permission to allow employers to research their qualifications, experience, dates of employment, and right to work in the UK
- Employers should take reasonable steps to validate the accuracy of information accessed online
- A distinction should be drawn by employers between social media for mainly private purposes and social media for mainly professional purposes (e.g. employers can check LinkedIn but not Facebook)
- Employers should seek employment references once a job offer has been made, not prior to interview
- Employers should apply the same level of care in avoiding unconscious bias and discrimination when online checks are being conducted, as they do when conducting face to face interviews or other aspects of the recruitment process
- When using recruitment agencies, employers should agree what pre-employment checks are necessary and appropriate. Where outsourcing takes place, it may be unclear which organisation is responsible for conducting pre-employment checks in the first place. But where this responsibility is outsourced, the employer must recognise that they retain overall responsibility for the legal and ethical consequences of either lax or over-zealous approaches to pre-employment vetting and could suffer reputational damage where practice is poor
- Employers should establish the potential employee’s eligibility to work in the UK, in order to avoid statutory penalties for employing foreign nationals who do not have lawful permission to work in the role in question.
Mike Emmott, Employment Law Adviser at the CIPD, said: “Many people admit to having lied on their CV, particularly about their experience, qualifications or salary. You might think that this kind of bad practice would have become less prevalent with the rise of LinkedIn and Twitter, which for many can now act as a de facto electronic CV, but it is still a real issue.
“Employers have a right to check candidates’ online profiles, but they shouldn’t go on fishing expeditions to find out details about their private lives. They need to ask, is this information strictly relevant to the job the candidate is applying for?
“With the recent blacklisting scandal making the headlines, pre-employment checking has been brought into sharp focus. But current issues in recruitment are far more complex than they first appear. We hope that this guide will clear up some of the grey areas for employers and help avoid costly mistakes.”