Recently the media reported the story of Paris Brown, the former youth police and crime commissioner for Kent, who was forced to resign from her post on 9 April 2013, after the Mail on Sunday publicised tweets she had previously made and which could be considered homophobic and racist.
The comments were made by 17 year old Paris when she was aged between 14 and 16.
This story highlights the need for employees to consider very carefully what they post on social media sites because it can have a direct impact on their employment even several years later.
It was admitted by Kent Police that as part of their recruitment process they did not check Ms Brown's twitter feed. However, as we reported in 2012, ACAS published a Research Paper on Workplaces and Social Networking, which suggests that over a quarter of UK employers use social media to vet job applicants.
Currently there is no legislation in the UK which prohibits employers from considering information contained on applicant’s social networking profiles, when making a recruitment decision. However this does not mean that employers can conduct searches on social media sites when recruiting without fear of any repercussions.
By viewing an individual’s online profile, employers will often learn the race, age and marital status of the applicant. In addition, it may reveal the employee’s sexual orientation, religion or political beliefs, it may be apparent that the employee is pregnant or intending to start a family or that they have a disability.
The danger for employers is that if a decision is subsequently taken not to appoint a candidate in circumstances which included a review of their Facebook (or other social media) page then this could potentially give rise to allegations of discrimination.
An employee may find it difficult to persuade a Tribunal that the failure to recruit was due to the content of their Facebook page, particularly given that they will generally have been up against a significant number of other candidates. However, it is not impossible and a Tribunal may draw certain inferences and place the onus on the employer to prove that they did not discriminate.
Vetting of job applicants via social media also involves processing personal data (when the employer either uses or records the information obtained), so employers must ensure that any vetting is compliant with the Data Protection Act. The ICO's guidance lists several principles for valid vetting in general which require consideration in this context, including:-
- vetting should be used to confirm specific points rather than for general intelligence gathering;
- information should only be sought from sources where it is likely that relevant information will be revealed;
- employers must avoid placing reliance on potentially unreliable sources.
Taking these requirements into account, it may be difficult in many cases for employers to justify accessing Facebook pages as being a sufficiently targeted and reliable means of vetting.
Importantly perhaps in the context of vetting social media sites, the Code also indicates that candidates should be given the opportunity to comment on the accuracy of information obtained and be told in advance of the vetting that will be undertaken.
The downside to complying with this requirement is that it is likely to make it easier for an employee to argue that unlawful discrimination has taken place. That said a disgruntled employee contemplating raising a discrimination claim could, in any event, make a subject access request with a view to seeing whether there was any record of a social media search and/or (until they are abolished) serve an equal opportunities questionnaire on the employer specifically asking the question whether this formed part of the recruitment process.
Employers should consider these points before deciding whether to conduct vetting through social media as part of their recruitment process. Despite the potential legal pitfalls it may be that many employers will take a view on the basis that they consider the benefits to the organisation to outweigh the risks. Certainly in the case of Kent Police it is very likely that they wished they had done so.