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



This is an increasingly common practice, and its impact on a prospective applicant can be severe. In 2014, research from the United States by job-search website Careerbuilder found that more than half of the employers who used social media websites like Facebook and Linkedin to informally screen applicants decided against recruiting a potential candidate as a result of material uncovered.


As the TUC warns in guidance Facing up to Facebook, employers should not be using social media to screen candidates. It creates a high risk of unlawful discrimination (see Chapter 7), 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.


It also unfairly distorts the selection pool, favouring those with a strong public profile or a strong affinity for digital media, even if this is not relevant to the role. 



The human right to privacy (Article 8 of the European Convention on Human Rights) is probably not infringed where a prospective employer searches someone’s social media profile, unless they hacked into the relevant webpage. This is because courts and tribunals generally treat the worldwide web as a public space. Just because a comment is only made to a limited number of Facebook Friends does not make it private. 



Specifically as regards trade union membership and activity, under section 137 of the Trade Union and Labour Relations Consolidation Act 1992 (TULRCA), there is a statutory right not to be refused employment due to trade union membership or non-membership (see Chapter 5). Under section 138, 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. For more information about anti-blacklisting laws, see Chapter 5.