November 27th, 2018 | Sterling

Social media screening: How to avoid risk when hiring

Social media has not only transformed the way we communicate with one another, but it has become a game changer in the world of recruitment and talent acquisition.

Huge amounts of data can be gleaned from candidates’ social media profiles, so it can be very tempting for employers to check sites such as LinkedIn, Twitter and Facebook to not only source prospective employees, but vet them before making a hiring decision.

Yet while social media searches can provide a greater depth of insight into a candidate that you may not necessarily get from a CV or interview, there are considerable risks if these checks are not carried out as part of a formal screening process, and hiring decisions are based on information you are not allowed to use.

According to a 2018 CareerBuilder survey, 70% of employers use social networking sites to research candidates during the hiring process, and of those, over half found information that caused them not to hire an applicant. In addition, research by and YouGov in 2016 revealed that 36% of UK employers have rejected a candidate based on their social media profiles, while more than half of UK HR professionals admit that a candidate’s online reputation can influence hiring decisions.

However, a recent report by Sterling found that 60% of businesses claim not to perform any social media checks as part of a structured background screening programme, which suggests that while it’s common for hiring managers to check social media profiles as part of the recruitment process, there are some who could be carrying this out ‘unofficially’. If so, employers need to tread carefully because social media searches must be compliant with discrimination and privacy laws.

“HR departments can carry out social media checks on all applicants before they get to the interview stage, in order to build an idea of who they are as a person and what kind of employee they are likely to be,” remarks Emma O’Leary, legal advisor at Elas. “While this can help identify any potential areas of concern, vetting candidates in this way can also throw up some risks to you as an employer. If you discover that an applicant possesses one of the protected characteristics – for example, if they are disabled or of a particular race or sexual orientation – and that puts you off hiring them, the risk of a discrimination claim is real, should your vetting be exposed.”

The associated risks are based around making recruitment decisions with conscious or even sub-conscious bias, based on something that the hiring manager has seen on social media, she adds. “If that bias is against a particular protected characteristic, then it may well render the company liable to claims of discrimination without a candidate even being offered a job.”

David Bradley, chairman and head of employment law at Ramsdens Solicitors, says that a lack of consistency is also a significant risk when carrying out social media searches.

“If you had a pool of 10 applicants and you applied a filter to those applicants that was related to a protected characteristic, and you performed ‘informal’ checks on that group’s social media, and that came to light, there would be a risk that you have treated that group of people in a different way to others. So a consistent application of policy or practice is fundamental.”

HR must therefore ensure all hiring managers have a clear understanding of what information they can draw on when using social media in recruitment, and that they base hiring decisions on information found that is relevant to the job role.  HR should also make sure managers are aware of the risks around protected characteristics and sensitive personal data, and have received training on relevant legislation such as the Equality Act and the GDPR.

Jemma Fairclough-Haynes, CEO of Orchard Employment Law, recommends that employers have policies on the use of social media in recruitment, in terms of equal opportunities and anti-discrimination. “If you are following robust equal opportunity and anti-discrimination policies, this will reduce the risk,” she remarks.

You should also inform candidates that you may be conducting research on all applicants online prior to interview, and obtain their consent beforehand, so they are aware and can decide for themselves what they wish to have private or public on their social profiles.

“If a candidate has a social media profile, they have not created it for their employers – even if it is public and available in the public domain – and they have not necessarily given consent for it to be used as part of the employment process,” comments Bhavini Kalaria, managing director, London Law Practice. “So if an employer is considering using social media as part of their recruitment process, they should seek express permission so that candidates are aware of it.”

Bradley’s advice to employers is to ensure you are clear on your purpose for carrying out social media screening. “Have some rationale for doing it. Consider what is important to you as an employer and the characteristics that are important to you for the job role. So when you do your searches of publicly-accessible information, you can measure it against that framework.”

For more on the risks and rewards of performing social media background checks, listen to the recording of our ‘Social Media Background Checks: Are You Compliant?‘ webinar.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.