Status update: my job interviewer wants to see my wall

It has been reported that a number of companies in America are asking candidates for their Facebook log-in details. Some even present the candidate with a computer during their interview, inviting them to log in so that their prospective employer can have a snoop.

The United Kingdom is often portrayed as having unduly restrictive employment laws. It is generally accepted that they are more restrictive than the laws applying across most of the United States. How, then, would such practices tally with the laws of the United Kingdom?

“What about my human rights?” may be the cry from the indignant candidate. Often individuals believe the Human Rights Act 1998 gives them the right, as humans, to do whatever they please. They may also believe that it precludes people from asking them to do things that they do not want to do. Probably the right pled most often is the right to a private life, which stems from Article 8 of the European Convention on Human Rights (section 8 of the Human Rights Act 1998). However, the Human Rights Act only applies to public employers. In any event, even if the act applies, the prospective employer is not doing anything surreptitiously, merely asking for permission to access information known to others, in order to determine the suitability of the candidate.

How does this differ from asking the employee for permission to contact their current workplace for a reference? While an employer may be in breach if it somehow accesses private information without permission, the request to do so is unlikely, of itself, to be unlawful. Even were the right breached, in certain circumstances that might be permissible.

A breach of a candidate’s human rights is not, perhaps, the biggest area of risk here. Even if human rights are not breached, the action could in some circumstances still give rise to a valid claim. Individuals are protected by the Equality Act 2010 from being the subject of discrimination in recruitment. With few exceptions, employers cannot recruit individuals (or choose not to recruit individuals) on account of a “protected characteristic” – these are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

It is likely that most employers would not seek to delve into an individual’s private online profile until a late stage in the recruitment process. Facebook profiles might disclose at least one of the protected characteristics of which the employer had not, until that stage, been aware.

An unsuccessful candidate will then ask “Why? It was all going so well. What has changed?” If there are facts from which the tribunal could decide that the reason for not selecting the candidate was on the grounds of a protected characteristic, the employer must provide an alternative explanation for their decision.

Unsuccessful candidates who suspect discrimination in relation to a protected characteristic have the right to serve statutory questionnaires on employers, seeking information such as the reasons for their decisions and the demographic breakdown of the applicants for the post. A failure to reply or the provision of equivocal answers may, in a subsequent tribunal claim, create an inference that the employer has unlawfully discriminated in the way alleged.

However, despite the protections afforded to individuals, the wise candidate should carefully edit any online profiles and ensure that they have selected appropriate security settings. As a rule of thumb, anything they would not wish their granny to see would be better not to feature on Facebook.

For their part, employers should think carefully when choosing what information to consider in the course of recruitment. The reasons for the ultimate decision should be carefully recorded. This will enable the employer, in the event of a claim, to produce a paper trail that records and justifies the decision reached and shows that it was not prompted by any consideration of protected characteristics.

l Andrew Brown is an associate in Anderson Strathern’s employment and pensions unit