YouGov Survey Reveals Extent of Employers' Reliance on Social Media in Recruitment Decisions

It is clear from the YouGov survey that it has become a common practice for prospective employers to review candidates' social media use as part of their recruitment process, with 48% of employers saying they check an applicant’s LinkedIn profile and 46% and 28% saying the same for Facebook and Twitter respectively.

Only 31% said they would not search for candidates on social media at all. The consideration of LinkedIn is unsurprising. After all, it is a professional networking site. However, many candidates may have expectations that their use of Facebook and Twitter (and indeed other social media) for purely social reasons would be private.

As is so often the case, the law has lagged behind technology in this area, so we have not seen any reported cases in the UK involving claims by job candidates based on a rejection for something in their social media use. However, there are plenty of examples now of the Employment Tribunals engaging in the question of to what extent an employee can expect to keep their personal social media use away from their employer's eyes. In some cases, the Tribunals had been happy to find that the circumstances of the social media use have meant that the employer was entitled to consider and rely on the employee's actions online. For instance:

• An employee who on Facebook made derogatory comments about managers and appeared to suggest that he had been drinking alcohol whilst on standby, which were brought to his employer's attention by colleagues, was fairly dismissed for gross misconduct (British Waterways Board v Smith)
• A manager whose private Twitter account was followed extensively by colleagues and customers, was fairly dismissed for offensive tweets about dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the police and disabled people (Game Retail v Laws)
• An Apple employee who contravened its social media policies, after receiving extensive training on them, by posting derogatory comments about its products on Facebook was fairly dismissed (Crisp v Apple Retail)

However, not every case has been determined in favour of the employer. There are several examples where employers have taken action in respect of employee social media use to protect their reputations and been found to have acted unreasonably. These include:

• An employer unfairly dismissing its employee for posting on a Facebook page in support for opposition to proposed changes to working hours (Stephens v Halfords)
• An employer unfairly dismissing its employee who was based at a key customer's premises for posting on Facebook a comment "I think I work in a nursery" that was only visible to friends
• The key principle that emerge from these cases are that employers are more likely to be entitled to take disciplinary action when they have a policy clearly articulating the rules of social media use, and the extent to which personal use impacting on matters such as the Company's reputation will have disciplinary consequences

It seems unlikely that in a recruitment context many potential employers will have taken the trouble to notify their applicants that they intend to review and take into account information accessible from social media. It may therefore be easier for such an applicant to persuade a Tribunal that the potential employer has taken account of information in respect of which they had a legitimate expectation of privacy. This is something that individuals can claim compensation for, in light of the right to a private and family life enshrined in the Human Rights Act and developments in case law, particularly the famous case of Campbell v MGN Ltd in 2004. However, such claims are still relatively rare.

What may be a more realistic scenario would be an unsuccessful candidate seeking to pursue a claim for discrimination on the grounds of, say, their sexual orientation or religious or philosophical beliefs, on the basis that the employer had discovered facts about these protected characteristics from the applicant's social media profile.

Employers should also be aware of the implications of reviewing information likely to be regarded as personal data for data protection purposes and the risks of breaching legal obligations if they process such data without consent or a legitimate purpose.

Best Practice

Given the widespread use of social media, its reliance as an extra source of information in recruitment processes only seems likely to increase. However, employers should be aware of the potential pitfalls of relying on such information. It is usually sensible to keep an accurate record of the reason why a candidate was unsuccessful for a role for at least three months after the position is filled in case of a challenge.

For more information, please contact Bob Fahy in our Employment Law team on 020 7665 0842.