Using Social Media – German ban

The German Federal Cabinet is currently proposing to pass a law which will amongst other things prohibit employers from using social networking sites to find out about prospective employees. But how often do you search the internet to find out more about prospective staff and their social lives and is this something that could come in to force in the UK?

According to the draft German Law, employers will be able to use accessible information from the internet to “background” search potential applicants, but will be prohibited from using information obtained from social networking sites used for “communication purposes”, such as Facebook which we are told is specifically cited as an example. The law is intended to establish a balance between the legitimate interests of employers against the protection of the employee’s personal data. In contrast, information gathered from professional networking sites, for example LinkedIn, will be able to be used as these sites exist for business orientated purposes rather than for social reasons.

This would not appear to affect the use of social media sites by prospective employers as a means of directly promoting an employer brand. Rather it applies to the use of information from sites used by the candidate for social reasons.

Germany has some of the most stringent privacy laws in Europe, and there is currently no equivalent legislation in force or proposed in the UK. However sometimes it only takes one country to potentially get the ball rolling. In any event in the UK employers should be careful when screening candidates by referencing social network pages. Firstly, there could be issues under the Data Protection Act. It is likely that information contained on a person’s Facebook page will be “personal data”, which cannot be processed without that individual’s consent. It is unlikely that merely looking at a page will be processing, however forwarding that link on, or printing the page for inclusion in their personnel file could be.

Secondly, there could be discrimination issues to be wary of. For example, a Facebook page may give away information concerning a person’s age, sexual orientation or religion, all of which are protected characteristics under UK law. If any protected characteristics appear on a social site you run the risk of facing allegation claims should the applicant be unsuccessful. The safest approach for employers would therefore be to make clear at the outset of any application process that internet research will be conducted and obtain the candidate’s consent. Best (most risk averse) advice of all is do not use social sites for the purpose of background research, in case you stumble across protected information which of course the candidate will know about. A policy statement in a recruitment application form along the lines of “we do not use social media sites for obtaining information about candidates” should help reduce the potential of claims.

For more information on social media issues, please contact Ben Grover on 01273 236236.