Forcing their way into Facebook: are on-line profiles fair game for employers?

Forcing their way into Facebook: are on-line profiles fair game for employers?


Author: Nick Pritchett

Recent reports from the USA suggest that employers are beginning to ask candidates for their Facebook passwords so that they can access their profiles. Given this emerging trend across the pond, should employers in the UK follow suit or steer clear?

A new development

The recruitment process is full of legal pitfalls for the unwary employer and the growth of social media has made it arguably even more problematic.

Reports of both US and UK businesses asking individuals to hand over their Facebook login details and passwords have, predictably, divided opinion. Is this grossly inappropriate or merely part of the 21st Century recruiting process?

Fair game?

The trend emerging from the reported instances is that employers consider both current and potential employees should have "nothing to hide" when it comes to their Facebook accounts, with suspicions being raised if an employee's current privacy setting prevents their employer gaining access to their on-line profile.

Although it is not best practice, it is suspected that employers regularly look at social media sites such as Facebook during the recruitment process, to gauge an overall impression of a shortlisted applicant.

While there is nothing legally untoward in viewing this information if the individual has chosen to make it public, how the employer then acts on what they view may result in legal liability.

Current employees

Facebook is already a minefield for both employers and employees, with numerous instances of individuals being caught out by posting information that undermines alleged sickness absence from work or comments that may damage the reputation of their employer.

Employees often do not appreciate the distinction between public and private spheres and may make derogatory comments identifying their employer which go into the public domain and can be viewed by anybody.

In such situations, it is likely to be reasonable for a business to take disciplinary action against an employee if they are in breach of specific contractual obligations, staff rules or policies concerning social media use and/or bringing their employer into disrepute.

The risks

With the exception of profiles created expressly for work purposes (such as marketing or, indeed, for vetting new recruits), employers should be wary of the potential pitfalls in trying to look further by requesting login details for what is essentially part of an employee's private life.

For example, if an employer has gleaned information about the candidate's sexual orientation or religion from posted pictures on their site the individual may argue that this was why they were unsuccessful in their application and the employer could find itself facing a discrimination claim.

The data protection angle should also not be overlooked: information gathered in this way could be "sensitive personal data" which enjoys enhanced legal protection. For example, an employer may need to request consent from the individual before processing it.

Practically, potential employees may be put off from wanting to work at an organisation that appears to take such draconian and intrusive action, and the PR fallout may be wider if the general press reports on this.

Legally, demanding that an existing employee hand over (and possibly even asking for) personal login details may be considered to be too intrusive and could be a breach of the duty of trust and confidence implied into all employment relationships. This may form the basis of an employee resigning and claiming constructive unfair dismissal.

Practical advice

In short, employers should have procedures in place that enable them to obtain sufficient information about candidates and employees without the need for access to private data:

  • ensure managers are appropriately trained and aware of the distinction between public/private information and the possible effects on and legal risks to the employment relationship;
  • conduct robust application, assessment and interview processes to ensure they have the right candidates; and
  • include detailed social media policies in staff handbooks to deal specifically with platforms such as Facebook and twitter and their use in the employment sphere so that everyone knows where they stand.