The Federal Cabinet in Berlin has approved a draft law severely limiting the use of social networking sites when researching the suitability of job applicants. Which websites would escape the ban and what is the position in the UK asks Lloyd Davey.
Who: Facebook and all employers
When: August 2010
Law stated as at: 31 August 2010
The Federal Cabinet in Germany has approved a draft law which will make it illegal for employers to use certain social networking sites when researching the suitability of job applicants. The profiles of applicants on social networking sites which are used for electronic communication (such as Facebook) may not be accessed by employers in the recruitment process.
However, professional social networking sites, such as LinkedIn, will not be affected by this law and German employers will be able to continue to research applicants' profiles on those sites.
Why this matters:
Being a German rather than a European Union law, it has no direct relevance to the UK other than to raise further awareness of the use social networking sites in an employer's recruitment process and to serve as a reminder to us all that there is a vast amount of personal data freely published on those sites and that there are already restrictions in the UK on the use of personal data.
In the UK an applicant's personal data is protected by the Data Protection Act 1998 which lays down a number of obligations on those who use personal data. The Act is supplemented by an employer's code of practice (the "Employment Practices Code") which has a section on recruitment issues. In the context of a recruitment exercise the hiring employer has an obligation under the Act to explain to candidates what information will be collected from them, which information sources will be used, how the employer might undertake candidate vetting or information verification and what will then be done with the resulting personal data. An employer who regularly searches social networking sites or the internet at large in the course of researching a candidate's suitability would be best advised to:
- check data privacy statements in application forms to ensure candidates are aware that internet searches may be undertaken
- be alert to any discrimination which may flow from the discovery of characteristics which are protected by the UK's anti-discrimination laws, which apply to job applicants as well as employees; and
- take care in ensuring that the correct person has been identified when undertaking an internet search – mistaken identity could be common