Employers may be acting unlawfully by vetting job applicants through their social media accounts – even where those profiles are public, new guidance has confirmed.
The guidance, issued by the Article 29 Working Party (which represents all of the EU data protection authorities) confirms that, unless information on a person's Twitter biog or Facebook profile is relevant to the role in question and applicants have been clearly warned that their accounts will be reviewed and considered as part of the recruitment process, any such vetting – which is regularly carried out in practice – may well constitute a breach of the applicant's privacy rights.
Commenting in the FT, Phil Lee, a partner in our Privacy and Information Group said:
"The opinion of the working party is non-binding but very persuasive due to who they are. They will influence how the national data protection authorities read the rules. In this case, they have said there must be a really good reason, relevant to the role concerned, for an employer to check someone's social media profiles. Employers should not assume that merely because an individual's social media profile is publicly available they are then allowed to process those data for their own purposes."
Employment Associate, David Lorimer adds:
"The guidance serves as a reminder that, despite advances in underlying tech enabling more advanced monitoring of employees' activities, employers must exercise caution, and evidence a careful weighing up of their interests against the employees' privacy rights before rolling out and relying on information collected. And, of course, care is needed before deciding not to hire on the basis of a few questionable pictures from Summer 2017!"
With potential fines for certain breaches of data protection law increasing to up to 4% of global annual turnover in May 2018 (with the introduction of the General Data Protection Regulations (GDPR)), employers would be well advised to re-visit their monitoring policies and activities in light of this guidance.
More information and analysis on the guidance is available here.
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