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70% of employers look at social media profiles and posts to assess candidate suitability. So says CareerBuilder’s 2017 survey, which found a 10% increase in this practice from the previous year, and a huge increase from the mere 11% that used social media to screen candidates in 2006.

The CareerBuilder survey paints a fascinating picture of how social media is used by recruiters today. Over half of those surveyed decided against hiring a candidate because of something they found on social media. 57% said they were less likely to interview a candidate they couldn’t find online.

But the story doesn’t stop at recruitment. Half of employers continue to check social media once candidates are hired, and over a third have reprimanded or fired an employee for posting something inappropriate.

Okay, so organisations and their recruitment agencies use social media to check on people. But is it advisable? Unfortunately, the cons can outweigh the pros if you take anything other than a wholly conscientious approach to it. Let’s look at why this is.

The pros

As a recruitment agency, you want to swiftly recommend suitable matches to your clients. Delays and inappropriate candidates increase the risk of your client finding another agency to service their needs. That can provide a strong incentive to find out as much as possible about the candidates you put forward. Social media certainly gives you more information, and can potentially give you a better feel for their suitability for a role. That said, there are a few challenges.

Finding information isn’t always easy. If a candidate has full privacy settings on their Facebook account, you won’t be able to see their posts unless you connect to them. Furthermore, they may have set their profile and timeline so they aren’t publicly indexed by search engines.

Locating people on Twitter can be easier, but the issue here is that social media is often used to paint an idealistic picture rather than a true depiction. People tend to be more polished when tweeting than they are when posting to friends and family members on Facebook. The same can be said of images posted on Instagram.

Similarly, LinkedIn has become strongly associated with recruitment, which can work against it as a source of information. In its essence, LinkedIn is an online CV repository, so candidates will acknowledge the likelihood that prospective employers and recruitment agencies will be looking at it. Anything they post will be geared towards painting them in a good light.

The cons

Unfortunately, the cons could land you in an employment tribunal if you aren’t extremely careful how you use what you glean from a candidate’s profile and timeline.

The problem with social media is that you are almost certainly going to discover information that is protected by equality legislation. For example, a candidate’s age and race will be immediately discernible. Their timeline could also include posts that infer religion and sexual orientation. It may also include details about their health, including any disabilities they may have. This opens you up to allegations of discrimination if the candidate claims they were refused an interview or job as a result of a protected characteristic discovered in an online search.

Ah, but how do they prove you looked at their profile or posts? If you were using LinkedIn, then this is evident as one of the site’s features. Similarly, if you tried to connect to them they will know why. Even if you search discreetly if you end up in the Employment Tribunal, you can be asked detailed questions about your actions and the information you found, and you need to answer these truthfully, risking being found in contempt of court if you don’t.

You also run the risk of being found guilty of using a candidate’s data without their consent in the absence of having any legal basis to process it. Consent for processing personal data in all its forms is a key requirement of the new Data Protection Act, click here to download our GDPR Employment lifecycle which incorporates the General Data Protection Regulation (GDPR) from 25 May 2018. A standard practice of using candidate data obtained via social media without consent could be seen as a pervasive culture of disrespecting people’s data rights warranting a steep fine. Click to view our GDPR hub page for free downloads and information.

So is it worth it?

Many question the value of social media screening. What a candidate posts on LinkedIn will likely support their CV, and is unlikely to reveal any deep insights about their personality. Finding wholly inappropriate content on services like Facebook, Twitter and Instagram is relatively rare, and profiles and posts don’t necessarily reflect what a candidate is like during office hours.

On the flipside, the new Data Protection Act introduces fines of up to 4% of your global annual turnover for processing data without consent. And an employment tribunal with enough reasonable doubt that discrimination has taken place would land your business (and even you personally) with a potentially significant award of compensation (plus a publicly available written judgment).

If you feel social media screening is a valuable part of the recruitment process, then I recommend you are extremely clear about your policies and practices. This can help you to justify that it played no part in your decision to recommend or not recommend a candidate.

Here’s what I suggest from a legal perspective:

• Make sure every recruitment agent you employ is well trained in equality legislation and able to avoid discrimination in everything they do
• Tell candidates at the outset of the recruitment process that you will conduct a social media search, and obtain their consent to do so
• Do this consistently for all candidates so you can state that it is a standard recruitment practice of your agency
• Use social media screening after the initial interview and assessments
• As far as possible, only gather information that is relevant to the specific role you are putting the candidate forward for, rather than general research into their life
• Use the information gleaned from social media to verify details you have already gained from the candidate via their CV and initial interview
• If you discover inappropriate content during the process and wish to withdraw the recommendation or job offer, seek legal advice first on how to proceed.

If you can demonstrate a clearly-defined, consistent approach such as this, then you will be more likely to satisfy a judge that the candidate’s social media information was processed appropriately and did not lead to discrimination.

Chris Cook
Partner & Head of Employment & Data
SA Law