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Is it OK to check a job candidate’s social media profile?

19 October 2018

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. Get in touch with us for clear, practical advice on this topic.

Matthew heads our employment team. He handles the full range of contentious and non-contentious employment law issues for clients which include multi-national companies, owner-managed businesses and not-for-profit organisations. He is recommended by independent legal directory Chambers and Partners in which he has been described by a client as “responsive, commercial, understands where employers are coming from and gets right to the point, with meaningful and practical advice.”

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Disclaimer: All legal information is correct at the time of publication but please be aware that laws may change over time. This article contains general legal information but should not be relied upon as legal advice. Please seek professional legal advice about your specific situation - contact us; we’d be delighted to help.
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Matthew Clayton MA LLM (Cantab), CIPP/E
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