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26 & 27
March 2019

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Social Media Profiling of Job Applicants – When Can It Be Discriminatory?

Restaurant Tech Live blog post 1

Disabled job applicants should be aware of potential employers using social media screening, and alive to the risk of discrimination based on the candidate’s online presence.

Given that the majority of the workforce now have an online presence, more and more employers are screening applicants’ social media profiles as part of the recruitment process, and using social media to source candidates and advertise roles. Social media is undoubtedly a useful recruitment tool. However, social media screening can uncover information which otherwise wouldn't be available – such as the fact that the candidate had a disability. This could lead to discriminatory hiring decisions which wouldn’t be possible using a traditional recruitment process, or conversely, an inference of discrimination if the candidate is unsuccessful.

At least 40% of those involved in recruiting candidates already use social media screening as part of the hiring process, and this number is likely to continue rising. Scanning a candidate’s LinkedIn, Facebook, or Twitter profile can provide insights that can’t be garnered from interview questions.

This is not a problem in itself, but if employers are basing hiring decisions on protected characteristics, such as disability, which they could not have known about but for the social media search, this could amount to discrimination. The law on discrimination applies equally to online and offline hiring processes.

For example, if a recruiter discovers that a candidate is a member of several disability groups on LinkedIn, or finds a Facebook profile picture in which it is obvious the candidate has a disability, using this information as a reason not to interview or make an offer to the candidate is likely to be discriminatory.

Savvy employers should have a clear policy on the use of social media in recruitment. Guidance from the Chartered Institute of Professional Development (CIPD) suggests that candidates should be informed at the outset if online searches will be used to inform the decision making process. Applicants should always check this at the beginning of the recruitment process, as they can ask for an opportunity to respond to any information found online which affected the decision if they are unsuccessful. Employers should also distinguish between professional and personal social media, looking at a candidate’s LinkedIn profile may be legitimate, but Facebook may not be.

That being said, it can be difficult to prove discrimination where a potential employer has been making distant and subjective decisions using your online presence. However, it would be a start for applicants with a protected characteristic, such as disability, to know that recruiters had been looking at your social media accounts.

Discriminatory advertising of roles is also unlawful, for example, ensuring a particular job is only advertised to a particular demographic online, using targeted advertising. It was recently alleged that certain UK companies have been using algorithms to ensure that only younger candidates see job postings, which is likely to amount to age discrimination. As more and more recruitment moves online, employers and candidates alike should be alive to the risk of discrimination based on social media profiling.

Landau Law will be at Naidex on stand 10266. Find out more at www.landaulaw.co.uk, or get in touch on 020 7100 5256, info@landaulaw.co.uk. 

 

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