What if an employer checks out the “digital footprint” of potential applicants?

This is a growing practice. Research in 2010 by job-search website Careerbuilder found that well over half of UK employers regularly used social media websites like Facebook and Linkedin to informally screen applicants, with two in five admitting to changing a hiring decision as a result of material uncovered. US research cited by Acas in 2011 suggests that the most common reasons for rejecting candidates after reviewing their online footprint are “lifestyle” rather than “employment” issues, for example “provocative or inappropriate” photos.

As the TUC warns in its guidance Facing up to Facebook, an employer who takes equal opportunities seriously should not be doing this. It distorts the selection pool, unfairly advantaging those candidates with a strong public profile. It also creates a high risk of unlawful discrimination (see Chapter 6) or unlawful trade union-related victimisation (see Chapter 5) where information about ethnicity, sexuality, trade union membership or activity or other irrelevant criteria is revealed that cannot be deduced from the application form. This sort of practice by a body engaged in providing public services would also infringe the Public Sector Equality Duty (see page 198).

The human right to privacy (Article 8 of the European Convention on Human Rights) is unlikely to be engaged where a prospective employer looks at social media, unless they can be shown to have hacked into the relevant webpage. This is because the worldwide web is generally treated by the courts as a public space. Just because a comment is only made to a limited number of Facebook friends or Twitter followers does not make it private.

Digital footprint issues are particularly concerning to trade union members and activists, especially in the light of the ongoing blacklisting scandal (see page 132). Under section 137 of the Trade Union and Labour Relations Act 1992 (TULCRA), there is a statutory right not to be refused employment on the grounds of membership or non-membership of a trade union (see page 132).