Legal experts have warned that permanent candidates, Umbrella Company Employees and other contracting professionals in search of new work should be clearly told by recruiters that applicants’ social media usage may be examined in the screening process they undertake for end clients.

Failure to notify candidates that their social media history may be included in the screening process may risk breaching the new General Data Protection Regulation, which is scheduled to come into effect in April.

The warning comes in the wake of a social media backlash against the appointment of conservative journalist Toby Young as university regulator after some of his earlier social media posts were unearthed. Mr Young has apologised for some of his previous social media comments, which he described as “politically incorrect.”

Employment lawyers have told Recruiter magazine that it is now crucial that employment consultants are upfront with candidates about any screening of their social media history, especially if that yields controversial posts made by an individual they have put forward as a candidate.

Consultant solicitor Jacqueline McDermott of Keystone Law explained that recruiters finding dubious social media posts should raise the issue with the candidate as a first port of call and allow them a chance to give an account of themselves. They should also notify candidates if they believe they need to bring a questionable previous post to the attention of clients before actually doing so.

Some recruiters may already have a policy of telling candidates that they search social media but, Ms McDermott said, “I suspect there will be cases where they are not actually doing social media searches, it just comes to their attention.

“Then they would probably need a policy of telling the candidate that if anything adverse comes up, they may use [it] – if they don’t, the candidate may have a potential claim.

“Because in the new data protection regime that’s coming in this year, people have a right to be forgotten.”

Her advice was endorsed solicitor Peter Wright, Managing Director of DigitalLaw UK. He said that it was now essential to make it completely transparent, both with the contract with the candidate and the contract with the end client, precisely where the burden lies in the screening process.

Talent scouts must now make it very clear with candidates they are thinking of putting forward from the outset whether they conduct social media checks and other background checks. Wright conceded, however, that the sheer weight of work entailed in probing a candidate’s social media posts would almost inevitably make this an arduous task for recruiters to shoulder.

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