Oct 2024 – Caution for Employers – avoid discrimination when conducting pre-employment Google searches
A recent employment tribunal decision has highlighted the dangers of “googling” a candidate. Although a search might seem easy, risks relating to discrimination and processing of personal data are less straightforward.
Dealing with information uncovered during a recruitment process can be tricky for employers. You need to ensure the factors you are taking into consideration are legitimate, and the decision you make is fair and lawful. The recent case of Ngole v. Touchstone Leeds highlights the difficult balancing act for employers if adverse information comes to light via internet searches in a recruitment process.
Legal risks
There are a number of specific legal risks to keep in mind:
- Discrimination: it’s unlawful to discriminate against someone in relation to a protected characteristic during recruitment. This includes the “arrangements” made for deciding to whom to offer a job (i.e. pre-hire checks), and a decision not to make an offer.
There is no specific prohibition or legislation on checking the social media profiles of candidates or general internet searches (e.g. of news media). However, a search could reveal information about a candidate that could lead to inferences of discrimination if the candidate is subsequently unsuccessful. Employers must carefully assess how to handle such information.
- Under UK legislation, certain criminal convictions become “spent” after a set period of time, at which point a candidate is entitled to declare themselves as having a “clean” record. Even if an employer discovers that the individual has a spent conviction, they must be treated as if the conviction has not happened and cannot refuse to employ the person because of their historic conviction. And if unfair dismissal becomes a day one right, new recruits (although not applicants) will have stronger protection.
- Data protection: Searches conducted during a recruitment process will involve processing personal data, and potentially special category personal data on matters such as a person’s health, sexual orientation, religious beliefs or political opinions. This means that the candidate’s data and privacy rights under the GDPR must be upheld.
The ICO employment practices code suggests you only use vetting where there are particular and significant risks involved to the employer, clients, customers or others, and where there is no less intrusive and reasonably practicable alternative (reflecting general data protection principles).
Recruitment checks in practice
- Mr Ngole was a qualified social worker and applied to be a discharge mental health support worker with a mental health charity, Touchstone. He was offered the job, subject to DBS checks and references.
- As Mr Ngole’s references were not sufficiently detailed, Touchstone resorted to an internet search to find out more about him. This revealed that Mr Ngole had been dismissed from a university course after expressing religious views on Facebook disapproving of homosexual acts. This had resulted in legal proceedings against the University.
- As a result, the charity was “very concerned” that Mr Ngole’s ethos and values did not align with theirs. They were particularly concerned about the impact on LGBT+ service users, who statistically face much higher rates of serious mental health issues, due to stigma and discrimination, and were therefore far more likely to need support from the charity. They concluded that this could be the “last straw” for some, potentially even heightening suicide risks.
- The charity therefore withdrew the conditional job offer. After Mr Ngole challenged this, Touchstone offered him a second interview so they could discuss the approach he would take to the role and potentially reconsider their decision. However, Touchstone was not persuaded, and the job offer was not reinstated.
- Mr Ngole brought a range of discrimination claims. The tribunal found that the withdrawal of the job offer amounted to direct discrimination on the grounds of his religious beliefs. Although the objective of protecting staff and vulnerable service users was legitimate, the tribunal found that the withdrawal of the offer prior to the second interview was not proportionate – there were less intrusive options open to Touchstone. The Claimants’ other claims failed, including claims about the requirement for a second interview and Touchstone’s refusal to reinstate the job offer.
What can employers learn from the recent caselaw?
- Online “due diligence” is risky: best practice is to only use the information that you have told candidates you will use in order to make a decision. There is no guarantee that information found online, particularly on social media platforms, is accurate, or up to date, and relying on it could lead to bad decision making.
- If you find out information about candidates’ views or beliefs that raises concerns, always consider the Higgs criteria. These are the factors that the EAT identified as likely to be relevant when assessing whether an interference with the right to freedom of belief and expression is proportionate. For example, do you have vulnerable service users? Does anything that you have discovered potentially affect your reputation?
- Work hard on job descriptions and interview questions to ensure tight role requirements, minimising the possibility that decisions appear to be on the grounds of religion/belief or other protected characteristics.
- Have a thorough and robust recruitment policy, particularly if you are in a regulated sector, to ensure that you can refer to it should discrepancies or issues arise and to support consistent and fair decision making.
- Avoid knee jerk reactions. In the event of having discovered the adverse information, an employer’s response of immediately revoking the job offer was found to be excessive and counterproductive – beyond what was “reasonably necessary”. More proportionate responses could have included:
- discussing with the employee how they could more moderately express their views without discrimination concerns
- offering training or guidance to the employee as to how they might more appropriately express their religious views in a public forum
If you have any specific questions you would like advice on or if you would like information about what is discussed in this article, then please contact: Abi.Frederick@lewissilkin.com of Lewis Silkin LLP or koichiro_nakada@btinternet.com.