What if an employer checks out a job applicant’s digital footprint?

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.

As the TUC warns in its guidance Facing up to Facebook, employers should not be doing this. It creates a high risk of unlawful discrimination (see Chapter 6) or unlawful trade union-related victimisation (see Chapter 5). Information about ethnicity, sexuality, trade union membership or activity or other irrelevant criteria can easily be revealed online, wholly undermining a fair application process. This sort of practice by an employer providing public services would also be likely to infringe the Public Sector Equality Duty (see page 194). It also distorts the selection pool, unfairly advantaging those candidates with a strong public profile.

The human right to privacy (Article 8 of the European Convention on Human Rights) will not be engaged where a prospective employer searches someone’s social media profile, unless they 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.

In relation to trade union membership and activity, 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 121). Under section 138 of TULCRA there is a statutory right not to be refused access to the services of an employment agency for the same reason. Under the Employment Relations Act 1999 (Blacklists) Regulations 2010, it is unlawful to refuse employment or access to employment agency services for a reason relating to a blacklist (see page 125).