Social media has fuelled a recruitment revolution, with organisations screening candidates for new positions, on networking sites such as LinkedIn. As a screening tool, a potential employer can gain valuable insight into a candidate’s personality and background and conduct “first level” verification of a candidate’s education and experience.
However, employers should be aware of the risks (and how to minimise those risks) if intending to first review (and then rely upon) social media content about a candidate in the recruitment process. Collecting certain information about a candidate, via social media, may expose an organisation to the risk of legal action, on the basis that a recruitment decision was made for an “unlawful reason”.
A candidate may make an application for compensation to the Fair Work Commission (Commission) under the “adverse action/general protections” provisions of the Fair Work Act 2009 (Cth) (Fair Work Act) if the candidate believes that a decision not to proceed with the candidate’s employment application, was made on discriminatory basis.
For example, if a candidate’s social media profile reveals information about the candidate, such as their age, gender, sexuality, race, disability, political or religious affiliations and familial circumstances, the candidate may argue that the potential employer relied on that information, as the real reason not to proceed with the candidate’s application.
Under the Fair Work Act, the onus would be on the employer organisation to show that the “unlawful reason” did not form any part of the reasons for rejecting the candidate’s application. In some circumstances, the candidate may also be able to make a complaint and initiate legal proceedings, under state or federal anti-discrimination laws.
In the 2014 case of Willmott v Woolworths, before the Queensland Civil and Administrative Tribunal, Woolworths was ordered to pay $5,000.00 compensation to a candidate, for contravening the Queensland Anti-Discrimination Act, by requiring information about the applicant’s date of birth and gender in the online job application.
Employer organisations should also be aware that, under the Privacy Act 1988 (Cth), a candidate for a position has the right to access their own personal information, where it has been retained by an organisation during the recruitment process. This includes information gathered from social media sites.
Organisations should keep records of the reasons for not progressing a candidate’s application and ensure that those reasons are legitimate, in the event that a candidate alleges discrimination in the recruitment process.
This article was first published on 15 August 2015 and was updated on 17 May 2016