I have no doubt some “‘youngsters” will doubt me when I say an employer can (legitimately) take disciplinary action against an employee and refuse to offer, or withdraw an offer, of employment where it is has evidence of conduct outside of the workplace which may potentially have a bearing on their ability, or suitability, to do the job or which may bring the employer into disrepute.The irony is, they are the ones who have provided this evidence in the form of their online activities.
I will be speaking to them armed with the results of a recent survey from Monster and YouGov, which shows the hiring decisions of 56 per cent of the UK’s employers are influenced by job applicants’ online profiles. Another 36 per cent refuse to interview a job applicant, or reject an applicant already interviewed, after checking social media posts. And it doesn’t end there; 65 per cent of those surveyed admitted to turning to good old-fashioned Google in an attempt to uncover the truth about the real person behind the carefully crafted CV or application form which usually reveals nothing more damning than a love for cooking, reading and cinema.
Employees have, of course, been doing this for years. The first piece of advice given to any job applicant is to research the company they are interviewing for. However, the difference is employers are counting the number of empty cocktail pitchers in pictures from a Saturday night out with friends, cringing at the argument being played out on Facebook with said friends the morning after the night before and disagreeing with opinions voiced on Instagram. Perhaps unsurprisingly, employers are not amused by applicants’ inappropriate photographs or videos, drug taking and excessive drinking and poor communication skills ranging from text speak to insulting current or previous employers.
While an applicant or employee generally has the right to express themselves as they please, if an employer reasonably reaches the conclusion that it might cause offence to customers or other staff or bring the company into disrepute, it can refuse employment or dismiss.
Nevertheless employers should exercise caution as digital detectives and balance its interests with those of an applicant. Leaving aside the fact the information may not always be accurate, it is possible to glean information that cannot be used legally in applicant screening such as age, marital status or religion.
However, if an employer makes applicants aware at an early state that they may use social media and give applicants an opportunity to explain what has been found (or correct inaccuracies), this will help reduce the risk of legal challenge.
While employment law is ever-changing, social media is evolving quicker. My advice is “don’t share anything you would not want your mother to see” and you will get on just fine with your future employer.
l Donna Reynolds is an employment partner with CCW Business Lawyers